OP(KAT) No.69 of 2021

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942** **OP(KAT).No.69 OF 2021** **AGAINST THE ORDER DATED 23.1.2020 IN OA (EKM) NO.422/2014 OF KERALA ADMINISTRATIVE TRIBUNAL, ADDITIONAL BENCH, ERNAKULAM** ## **PETITIONERS/RESPONDENTS IN O.A.:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE (T) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2 THE DISTRICT COLLECTOR COLLECTORATE, ERNAKULAM. 3 THE TAHSILDAR KANAYANNUR TALUK, TALUK OFFICE, ERNAKULAM. 4 THE VILLAGE OFFICER MARADU VILLAGE OFFICER, MARADU.** **BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL** ## **RESPONDENT/APPLICANT IN O.A.:** **AYSHA KUNJUMOHAMMED D/O.KUNJUMOHAMMED, PART-TIME SWEEPER, VILLAGE OFFICE, MARADU, RESIDING AT PADINJARE MANNATHIL, NETTOOR P.O., ERNAKULAM, KERALA, PIN - 682040.** ## **SRI.ASHOK M.CHERIAN** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(KAT) No.69/2021 ## **ALEXANDER THOMAS & K.BABU, JJ.** **------------------------------------------------------** ## O.P.(KAT) No.69 of 2021 _(Arising out of the order dated 23.1.2020 in in O.A.(Ekm.) No. 422 of 2014 of KAT, Thiruvananthapuram._ ## **----------------------------------------------------------** _Dated this the 12[th] day of March, 2021_ ## **JUDGMENT** ## **K.Babu, J.** The challenge in this Original Petition, filed under Articles 226 and 227 of the Constitution of India, is against the order dated 23.1.2020 in O.A.(Ekm.) No.422 of 2014 of the Kerala Administrative Tribunal, Thiruvananthapuram (for short 'the Tribunal'). 2. The sole respondent (original applicant) filed Ext.P1 O.A. with the following prayers: - _“(i) Call for the records leading to Annexure A11 and set aside the same._ - _(ii) Call for the records leading to Annexure A5 and set aside the same to the extent it orders to absorb the applicant with effect from 30.6.2010 instead of from 18.6.2001._ - _(iii) Declare that applicant is entitled to get absorbed in regular establishment with effect from 18.6.2001 instead of from 30.6.2010._ - _(iv) Direct respondents to treat the applicant absorbed as regular part time contingent sweeper in Village Office, Maradu with effect from 18.6.2001 for all related purposes and provide her consequential benefits including seniority, fixation of pay etc._ 3 O.P.(KAT) No.69/2021 _and pay her arrears of emoluments, if any._ - _(v) issue any other declaration, order or direction appropriate in the circumstances of the case.”_ 3. The Tribunal passed Ext.P3 final order declaring that the Original Applicant is entitled to regularisation with effect from 18.6.2001 and that she is entitled to all consequential benefits. 4. We have heard Sri.B.Unnikrishna Kaimal, learned Government Pleader appearing for the petitioners/respondents in the O.A. and Sri.Ashok M.Cherian, learned counsel appearing for the respondent/original applicant. 5. The respondent/original applicant was engaged as a casual sweeper in the Village Office, Maradu in the year 1987. The original applicant alongwith some similarly placed employees filed W.P.(C) No.21486 of 2003 before this Court seeking payment at par with regular Part Time Sweepers in accordance with 7[th] Pay Revision Order. The Writ Petition was disposed of by Annexure A1 judgment dated 6.10.2003 directing to provide benefits sought for, keeping in view the distinction drawn between buildings having sweeping area below 100 sq. mtrs. and above 100 sq. mtrs. In compliance with the directions in Annexure A1 judgment, petitioner No.3 issued Annexure A2 proceedings dated 23.9.2004 sanctioning salary at the rate of 4 O.P.(KAT) No.69/2021 Rs.1,250/-+DA and arrears thereof to the respondent/original applicant with effect from 25.11.1998 based on the sweeping area of the Village Office concerned. Subsequently the Government issued G.O.(P) No.501/2005/Fin. dated 25.11.2005, laying down the guidelines for creation of posts of part time sweepers in Government offices and for regularisation of employees. Though the respondent/original applicant claimed regularisation, her request was not positively considered. So she approached this Court by filing W.P.(C) No.1842 of 2011, which was disposed of as per Annexure A4 judgment dated 19.1.2011 directing consideration of her claim. 6. Pursuant to Annexure A4 judgment dated 19.1.2011, the petitioner No.1 issued Annexure A5 G.O.(Rt) No.2265/2011/RD dated 20.4.2011 regularising the applicant with effect from 30.6.2010 after creating a post of Part Time Sweeper in the Village Office. Aggrieved by Annexure A5 order to the extent it sanctioned the post of Part Time Sweeper and ordered regularisation of the original applicant only with effect from 30.6.2010, she again approached the authorities concerned. Finally the original applicant approached this Court by filing W.P.(C) No.27174 of 2011. This Court, as per Annexure A8 judgment dated 14.10.2011, disposed of the Writ Petition directing consideration of the representation preferred by the original 5 O.P.(KAT) No.69/2021 applicant pursuant to which Annexure A9 G.O. (Rt) No.6381/2011/RD dated 31.12.2011 was issued by the petitioner No.1 rejecting the claim of the original applicant on the ground that the Maradu Village Office where the applicant was originally employed was shifted to the present building only on 30.6.2010 and she was eligible for regularisation only with effect from the above date. Aggrieved by Annexure A9 order, the original applicant moved the Tribunal by filing O.A.No.2563 of 2012. As per Annexure A10 order dated 7.6.2013, the Tribunal quashed Annexure A9 and remitted the matter to petitioner No.1/respondent No.1 in the O.A. for consideration afresh. Pursuant to the directions of the Tribunal, petitioner No.1/respondent No.1 in the O.A. issued Annexure A11 G.O.(Rt)No.6759/2013/RD dated 24.12.2013. The applicant challenged Annexure A11 order before the Tribunal. The Tribunal set aside the same as per Ext.P3 order dated 23.1.2020 declaring that the original applicant is entitled for regularisation with effect from 18.6.2001 and that she is entitled for all consequential benefits with effect from that date. Ext.P3 order is under challenge in this Original Petition. 7. The petitioners resisted the claim of the original applicant stating that the sweeping area of the old building of Maradu 6 O.P.(KAT) No.69/2021 Village Office had only a plinth area below 100 sq. mtrs. It was further contended that Maradu Village Office was later shifted to a new building on 30.6.2010. Only after shifting the Village Office to the new building, the Maradu Village Office acquired sweeping area above 100 sq. mtrs. According to the petitioners, only with effect from the date of shifting of the building to the new premises i.e. on 30.6.2010, the post of a regular part time sweeper could be created and hence the original applicant was only eligible for regularisation with effect from that date. 8. Sri.B.Unnikrishna Kaimal, learned Government Pleader appearing for the petitioners/respondents in the O.A., submitted that the petitioners were bound to sanction a post of regular part time sweeper only when the sweeping area of Maradu Village Office exceeded 100 sq. mtrs. on 30.6.2010 and the original applicant was entitled for regularisation only from that date. 9. The learned counsel for the respondent/original applicant, Sri.Ashok M.Cherian, contended that the original applicant is entitled to the benefits of Annexure A3 Government Order. 10. It is common ground that the respondent/original applicant was engaged in 1987 and that she has been in continuous engagement under the service of petitioner No.4/ respondent No.4 in 7 O.P.(KAT) No.69/2021 the O.A. as on the date of issuance of Annexure A3 G.O. dated 25.11.2005. 11. The subject matter in challenge is Annexure A11 G.O. dated 24.12.2013. The dispute fundamentally centres around the question whether the building where the original applicant was employed (Maradu Village Office) had a sweeping area above 100 sq. mtrs. as on the date of issuance of Annexure A3 G.O. dated 25.11.2005. 12. The original applicant and two others approached this Court by filing Writ Petition No.21486 of 2003 seeking direction to the petitioners/respondents in the O.A. to provide appropriate wages as per the Government norms. This Court, as per Annexure A1 judgment dated 6.10.2003, disposed of the Writ Petition. Paragraph 3 of Annexure A1 judgment reads thus : - _“3. The respondents should bear in mind the distinction drawn between places, where the areas to be swept area below 100 sq.mtrs. and over 100 sq. mtrs. Taking note of the Government Orders on the subject, the second respondent should take appropriate steps within a period of three months from the date of receipt of a copy of this judgment.”_ 13. Pursuant to the above direction, petitioner No.3/respondent No.3 in the O.A. issued Annexure A2 proceedings dated 23.9.2004. Annexure A2 proceedings dealt with the sweeping area of five offices including the Village Office where the original 8 O.P.(KAT) No.69/2021 applicant was employed. The relevant portion of Annexure A2 reads thus : _“The sweeping area of these Village Offices were estimated at above 100 sq. mtrs. Hence these individuals were eligible for a basic pay of Rs.1250/- + D.A. with effect from 25.11.1998.”_ 14. It was on the basis of the finding that the Village Office where the original applicant was employed, had a sweeping area above 100 sq. mtrs. she was sanctioned arrears of pay and pay @ Rs.1,250/- + D.A. 15. Based on the directions issued by this Court in _**Mercy v. State of Kerala (2004 (2) KLT 848)**_ , the Government issued Annexure A3 G.O.(P) dated 25.11.2005 laying down the guidelines for creation of the posts of part time sweepers in Government offices and for regularisation of employees engaged against them. In view of the directions in Annexure A3 Government Order, the original applicant approached the authorities concerned and requested for regularisation. Her claim was not considered. Subsequently by way of Annexure A4 judgment dated 19.4.2011, this Court directed the petitioners/respondents in the O.A. to consider the claim of the original applicant. Pursuant to Annexure A4 judgment, the Government issued Annexure A5 order regularising the service of the original applicant with effect from 30.6.2010 after creating a post of 9 O.P.(KAT) No.69/2021 part time sweeper in the Village Office with effect from that date. Aggrieved by the above order, the original applicant again approached this Court and her claim was directed to be considered as per Annexure A8 judgment pursuant to which the Government issued Annexure A9 G.O. dated 31.12.2011 rejecting the claim of the original applicant on the ground that Maradu Village office was shifted to the present building only on 30.6.2010 and that she was eligible for regularisation only with effect from the above date. The original applicant challenged Annexure A9 order before the Tribunal which set aside it and remitted the matter for consideration afresh. Pursuant to the directions of the Tribunal, Annexure A11 G.O.(Rt) No.6759/2013/RD dated 24.11.2013, which is under challenge in this Writ Petition, was issued. 16. As per Annexure A11, the Government ordered that the original applicant is entitled to regularisation as part time sweeper of Maradu Village with effect from 30.6.2010, the date on which Maradu Village office commenced functioning on the present premises with a sweeping area above 100 sq.mtrs. 17. The grounds on which Annexure A11 order was issued are the following : (a) The building which had housed the Maradu Village Office 10 O.P.(KAT) No.69/2021 at the time of engagement of the original applicant did not have a sweeping area of 100 sq. mtrs. and it was only on shifting that office to a new building on 30.6.2010, the office acquired sweeping area above 100 sq. mtrs. - (b) Petitioner No.3, the Tahsildar, had sanctioned arrears of pay as per Annexure A2 on a mistaken notion that the office had sweeping area above 100 sq.mtrs. 18. After the issuance of Annexure A11 order, the original applicant approached the Tahsildar concerned under the Right to Information Act and sought relevant information regarding the sweeping area of Maradu Village Office on the basis of which Annexure A11 order was issued. The original applicant obtained Annexure A14 reply from the Tahsildar stating that the sweeping area of Maradu Village Office had crossed 100 sq. mtrs. only after the renovation work was completed on 30.6.2010 and when it started functioning on the new premises. The original applicant again moved petitioner No.3 and sought for a copy of the sweeping area certificate in respect of the Village Office for the period from 18.6.2001. She got Annexure A16 information by which she was informed that no such measurement certificate was available for the relevant period. The learned counsel for the original applicant submitted that when there 11 O.P.(KAT) No.69/2021 was no document to substantiate the findings in Annexure A11 order, the contents of which cannot be treated as genuine and it can only be treated as an attempt to deny the benefit of regularisation to the original applicant as per Annexure A3 G.O. 19. It is pertinent to note that as per Annexure A1 judgment, which has become final, this Court had specifically directed that sanctioning of the pay and arrears of pay in accordance with the 7[th] pay revision order shall be on the basis of the sweeping area of the office concerned. It was on the basis of Annexure A1 judgment, Annexure A2 proceedings were issued by petitioner No.3/respondent No.3 in the O.A. specifically stating that the building where the applicant was originally employed had a sweeping area above 100 sq. mtrs. 20. Annexure A11 has been passed without taking into account Annexure A2 proceedings and on the basis of the reasonings which did not find a place in Annexures A2, A5 or A9. It is contended by the learned counsel for the original applicant that permitting the petitioners/respondents in the O.A. to make a plea that Maradu Village Office did not have a sweeping area of 100 sq.mtrs., at the time when Annexure A2 proceedings were issued, would be allowing them to raise a contention contrary to the directions in Annexure A1 12 O.P.(KAT) No.69/2021 judgment which has become final. 21. It is relevant to note that Annexure A16 information, obtained by the original applicant from petitioner No.3, revealed that a certificate in respect of the plinth area of the building where the Maradu Village office initially functioned,was not available during the relevant period. The petitioners now rely on Ext.P4 certificate stated to have been obtained from Maradu Municipality to contend that the Village Office during the relevant time period had a plinth area below 100 sq. mtrs. The learned counsel for the respondent/original applicant challenged the genuineness of Ext.P4. The petitioners never relied on the data contained in Ext.P4 while issuing Annexures A2, A5 or A9 proceedings and even at the time of passing Annexure A11. The petitioners are estopped from raising a plea contrary to Annexure A2, issued in compliance with the directions in Annexure A1 judgment which has become final. The necessary conclusion is that Maradu Village Office where the original applicant was initially employed had a sweeping area above 100 sq. mtrs. as on the date of issuance of Annexure A3 G.O. and the same continued to be so even after shifting to another premises. 22. Admittedly, the original applicant was engaged as a casual sweeper in 1987 and in continuous engagement under the service of 13 O.P.(KAT) No.69/2021 petitioner No.4/respondent No.4 in the O.A. from the date of issuance of Annexure A3 Government Order. Paragraph 8 of Annexure A3 Government Order reads thus : _“8. For the regularisation of the existing casual sweepers (where the sweeping area exceeds 100 sq. mtrs.), creation of posts of part time contingent employees depending on the sweeping area has to be made. The sweeping area will be calculated in accordance with the guidelines given in the Appendix. As far as regulation of existing casual sweepers are concerned, the measurement will be made by the PWD official after notice to the incumbent casual sweeper and in his presence. The incumbent casual sweeper will also sign in the format at Annexure either agreeing with the measurement or disagreeing with it. This exercise will be completed in all cases by 15.12.2005. If, on fixation, the area is seen to exceed 100 sq. mtrs. and if there is no post of part time sweeper sanction for office in question, but there is a casual sweeper being engaged, the Head of the office shall immediately take up with the Government, for creation of a post of part time contingent sweeper. Copies of the certificate of the PWD and full details of the case in proforma in the annexure shall be furnished along with the proposal. The Administrative Depart. in Govt., shall then issue orders before 21.1.2006, in consultation with the Finance Dept., for the creation of the post of part time sweeper in relaxation of the economy orders and allotting the existing casual sweeper by giving the remuneration of Rs.1,250/- plus D.A. p.m. (for area of 100 sq. mtrs. and above but below 400 sq. mtrs.) and Rs.1500 plus D.A. p.m. (for area of 400 sq. mtrs. and above but below 800 sq. mtrs.). The posts shall be created with effect from the date of appointment of the incumbent as casual sweeper or from 18.6.2001 (i.e., 3 years preceding the date of judgment ref.(10) above) whichever is later. In the case of those covered by orders of the High Court (for regularisation) the relevant date shall be the date of appointment of the incumbent as a casual sweeper or the date 3 years preceding the date of such judgment ordering regularisation, whichever is_ 14 O.P.(KAT) No.69/2021 _later. The absorption/ regularisation shall be done with effect from this date only. Back arrears shall be payable only with effect from this date of regularisation. The period spent prior to regularisation shall not count for any purpose.”_ 23. Annexure A3 G.O. mandates that where the casual sweepers have been employed as on or prior to the G.O. dated 25.11.2005 and the sweeping area exceeds the minimum threshold level of 100 sq.mtrs. as on the date of issuance of the said G.O., then they are entitled for regularisation and the sweeping area will have to be calculated and computed strictly in accordance with the norms and guidelines contained in the appendix of the said G.O. dated 25.11.2005. It has also been directed in the G.O. that for such regularisation, posts shall be created with effect from the date of appointment of the incumbent as casual sweeper or from 18.6.2001. 24. As the office where original applicant was initially employed had a sweeping area above 100 sq. mtrs., a regular post of a part time sweeper, in accordance with paragraph 8 of Annexure A3 Government Order, should have been created and original applicant should have been regularised with effect from 18.6.2001. 25. Similar or identical issue has already been considered by a Division Bench of this Court as per the the common judgment rendered on 7.7.2010 in W.A.Nos.1869, 2199 and 2218 of 2009. The 15 O.P.(KAT) No.69/2021 Division Bench held therein that since the scheme of regularisation as per the Government orders has been issued in compliance with the directions issued by this Court in the judgments mentioned therein and the legal position has been declared by this Court, then such benefits directed to be given in terms of the scheme framed on the basis of the directions in the judgments of this Court, cannot be taken way by subsequent executive orders, etc. 26. Taking into account the relevant materials, the Tribunal set aside Annexure A11 order and declared that the post of regular part time sweeper should have been created in the Maradu Village Office and the original applicant is entitled to regularisation with effect from 18.6.2001 and that she is entitled to all consequential benefits with effect from the above date. 27. We are of the considered view that the impugned order passed by the Tribunal requires no interference at the hands of this Court in exercise of the powers of judicial review and superintendence. 28. We are now apprised that the matter is now posted before the Tribunal for reporting compliance of the directions and orders passed by the Tribunal, failing which, the officer concerned shall personally appear before the Tribunal, etc. We hereby grant six 16 O.P.(KAT) No.69/2021 weeks' time from today to the petitioners in the O.P., for ensuring immediate compliance of the directions and orders passed by the Tribunal. We request the Tribunal to list the abovesaid matter immediately after the expiry of the said six weeks' time limit, so that the petitioners herein can report compliance. The order of the Tribunal will stand modified to the above extent. The Original Petition is disposed of as above. Sd/- **ALEXANDER THOMAS JUDGE** Sd/- **K.BABU, JUDGE** csl 17 O.P.(KAT) No.69/2021 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION ALONG WITH ANNEXURES.** - **ANNEXURE A1 A TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN WP(C) NO.21486/2003 DATED 06.10.2003.** **ANNEXURE A2 A TRUE COPY OF THE PROCEEDINGS DATED 23.09.2004 ISSUED BY THE 3RD RESPONDENT GRANTING ARREARS OF SALARY TO THE PETITIONER WITH EFFECT FROM 25.11.1998.** **ANNEXURE A3 A PHOTOCOPY OF THE G.O.(P) NO.501/2005/FIN. DATED 25.11.2005.** - **ANNEXURE A4 A TRUE COPY OF THE JUDGMENT DATED 19.01.2011 OF THE HON'BLE HIGH COURT OF KERALA IN WP(C) NO.1842 OF 2011.** - **ANNEXURE A5 A TRUE COPY G.O.(RT) NO.2265/11/RD DATED 20.04.2011.** - **ANNEXURE A6 A TRUE COPY OF THE REPRESENTATION DATED 09.06.2011 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT THROUGH THE 4TH RESPONDENT.** - **ANNEXURE A6(a) A FREE ENGLISH TRANSLATION OF ANNEXURE A6.** - **ANNEXURE A7 A TRUE COPY OF THE REPORT OF THE 4TH RESPONDENT DATED 18.08.2011 SUBMITTED BEFORE THE 3RD RESPONDENT, WHICH WAS OBTAINED BY THE PETITIONER UNDER THE RTI ACT.** - **ANNEXURE A7(a) A FREE ENGLISH TRANSLATION OF ANNEXURE A7.** **ANNEXURE A8 A TRUE COPY OF THE JUDGMENT DATED 14.10.2011 OF THE HON'BLE HIGH COURT OF KERALA IN WP(C) NO.27174 OF 2011.** 18 O.P.(KAT) No.69/2021 ## **ANNEXURE A9** - **A TRUE COPY OF THE ORDER IN G.O.(RT) NO.6381/2011/RD DATED 31.12.2011.** **ANNEXURE A10** - **A TRUE COPY OF THE ORDER OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL DATED 07.06.2013 IN OA NO.2563/2012.** - **ANNEXURE A11 A TRUE COPY OF G.O.(RT) NO.6759/2013/RD DATED 24.12.2013 OF THE 1ST RESPONDENT.** - **ANNEXURE A12** - **A TRUE COPY OF THE APPLICATION SUBMITTED BY THE APPLICANT BEFORE THE PUBLIC INFORMATION OFFICE IN THE OFFICE OF THE 3RD RESPONDENT TAHSILDAR DATED 06.01.2014.** - **ANNEXURE A12(a) A FREE ENGLISH TRANSLATION OF ANNEXURE A12.** - **ANNEXURE A13 A TRUE COPY OF THE COMMUNICATION FROM THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 3RD RESPONDENT TAHSILDAR DATED 28.01.2014.** - **ANNEXURE A13(a) A FREE ENGLISH TRANSLATION OF ANNEXURE A13.** - **ANNEXURE A14 A TRUE COPY OF LETTER NO.E1-12799/2013 DATED 26.09.2013 OF THE 3RD RESPONDENT.** - **ANNEXURE A15 A TRUE COPY OF THE APPLICANT SUBMITTED BY THE APPLICANT HEREIN BEFORE THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 4TH RESPONDENT VILLAGE OFFICER, DATED 06.01.2014.** - **ANNEXURE A15(a) A TRUE ENGLISH TRANSLATION OF ANNEXURE A15.** - **ANNEXURE A16** - **A TRUE COPY OF THE COMMUNICATION OF THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 4TH RESPONDENT VILLAGE OFFICER, DATED 29.01.2014.** - **ANNEXURE A16(a) A TRUE ENGLISH TRANSLATION OF ANNEXURE A16.** 19 O.P.(KAT) No.69/2021 |**EXHIBIT P2**|**TRUE COPY OF THE REPLY STATEMENT FILED**| |---|---| ||**ON BEHALF OF THE 2ND RESPONDENT.**| |**EXHIBIT P3**|**TRUE COPY OF THE FINAL ORDER DATED**| ||**23.01.2020 IN OA (EKM) 422/2014.**| |**EXHIBIT P4**|**TRUE COPY OF CERTIFICATE DATED**| ||**15.07.2020 OF THE SECRETARY, MARADU**| ||**MUNICIPALITY.**|