OP(KAT) No.73 of 2019

OP(KAT)No.73/2019 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942** ## **OP(KAT).No.73 OF 2019** **AGAINST THE ORDER IN TA 5062/2012 DATED 01-06-2018 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 TO 3 IN TA:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2 DISTRICT COLLECTOR CIVIL STATION, KOLLAM, KERALA. 3 THE TAHSILDAR TALUK OFFICE, KOTTARAKKARA, KERALA.** ## **BY SR. GOVERNMENT PLEADER SRI B. VINOD** ## **RESPONDENT/APPLICANT IN TA:** **S.SOSAMMA W/O A. GEORGEKUTTY, PART-TIME SWEEPER, ODANAVATTOM VILLAGE OFFICE, KOTTARAKKARA TALUK, KOLLAM, KERALA.** **BY ADV. SRI M.V.THAMBAN** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT)No.73/2019 2 ## **ALEXANDER THOMAS & T.R. RAVI, JJ. ------------------------------------------------** ## **O.P.(KAT) No.73 of 2019** [ _Arising out of order dated 01.06.2018 in T.A.No.5062 of 2012 of KAT, Tvm Bench_ ] **--------------------------------------------------** ## **Dated this the 1[st] day of February, 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 01.6.2018 in T.A.No.5062 of 2012 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram Bench (hereinafter referred to as the Tribunal). The petitioners were the respondents before the Tribunal and the respondent was the applicant. 2. The issue relates to entitlement of the 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 and others v. M.M.Mercy and others (W.A.No.1863 of 2004 and connected cases)** , the State OP(KAT)No.73/2019 3 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. 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, 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 OP(KAT)No.73/2019 4 before the issuance of the Government order dated 25.11.2005. 3. The respondent herein was working as part-time sweeper in Odanavattom Village Office from 01.12.1985. The respondent had filed W.P.(C) No.1031 of 2003 before this Court seeking regularisation as part-time sweeper and for disbursement of regular scale of pay with arrears, which was partly allowed by this Court by Ext.P1 judgment dated 03.02.2003, granting the relief of payment of salary in the scale of pay applicable to part-time sweepers. The Assistant Executive Engineer, PWD Buildings Sub Division Kottarakkara issued Sweeping area certificate on 08.07.2003, certifying that the sweeping area of the Village Officer, Odanavattom was 111.42 M[2] . It was thereafter that Ext.P3 order, G.O.(P) No.501/2005/Fin. dated 25.11.2005 was issued by the Government, proposing a scheme for regularisation of the casual sweepers. The respondent thereafter filed W.P.(C)No.7140 of 2009 before this Court claiming regularisation in service, which was allowed by Exhibit P4 judgment dated 05.03.2009. When the directions contained in Ext.P4 judgment was not implemented, the respondent filed Contempt Case No.852 of 2009. During the pendency of the case the Government issued Exhibit P5 order regularising the respondent in service, but with effect from 11.11.2008, on a reason that the Village Office had shifted to a new building on 11.11.2008, which was having a OP(KAT)No.73/2019 5 sweeping area of 154 M[2] and prior to that the sweeping area was less than 100 M[2] . The above reasoning is without taking into account the fact that even prior to the issuance of G.O.(P)No.501/2005/Fin, by Exhibit P2 certificate dated 08.07.2003 the sweeping area has been certified as 111.42 M[2] . According to Government, the Village Office where the respondent was working till 10.11.2008 had an area of only 91.44 M[2] and that after shifting to another building, the area was measured as 154 M[2] . 4. Exhibit P2 certificate showed the sweeping area of the old premises to be more than 100M[2] . Since the claim was made in the counter affidavit stating that the area was less than 100M[2] , the Tribunal directed as per order dated the 03.01.2017 to produce documents to show the sweeping area of the old premises. Thereafter Annexure R3(a) certificate dated 22.06.2006 was produced to show that the area was 91.44 M[2] . The applicant contended that Annexure R3(a) certificate cannot be relied on, since it was prepared in violation of the terms of the Government order dated 25.11.2005 which specifically provides the manner in which the measurement should be conducted when there is an existing casual sweeper. The Tribunal also noticed the fact that in the affidavit filed by the 3[rd] respondent, it is stated that the proposal was submitted on 28.06.2006 for creation of a OP(KAT)No.73/2019 6 post to regularise the casual sweeper, which is a clear admission to the fact that the area was more than 100M[2] . In the above fact situation, the Tribunal rejected the contention of the petitioners and held that the order regularising the respondent was liable to be modified with effect from 18.6.2001 as provided in G.O.(P) No.501/2005/Fin dated 25.11.2005. 5. Having gone through the evidence on record and the findings contained in the earlier judgments of this Court inter parte and the findings of the Tribunal in the impugned order, we do not find any reason to differ from the conclusions arrived at by the Tribunal. This is not a case where the sweeping area has increased after the issuance of G.O.(P)No.501/2005/Fin dated 25.11.2005. The sweeping area even in 2003 was certified as more than 100 M[2] and the respondent was continuing in service. As such the case of the respondent comes clearly within the stipulations contained in paragraph 8 of the above said Government order. No grounds are made out for interference with the order dated 01.06.2018 issued by the Tribunal in T.A.No.5062 of 2012. The time granted by the Tribunal to comply with its directions has expired long back. We deem it fit to grant a further time of 6 weeks for complying with the directions issued by the Tribunal. OP(KAT)No.73/2019 7 The original petition fails and is dismissed with the above modifications regarding the time for compliance. The parties will bear their respective costs. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn OP(KAT)No.73/2019 8 ## **APPENDIX** ## **' PETITIONER S EXHIBITS:** **ANNEXURE A1:** **TRUE COPY OF TA NO.5062/2012 ALONG WITH EXTS.P1 TO P6 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** - **EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 3.2.2003 IN OP NO.1031/03-W OF THE HONOURABLE HIGH COURT OF KERALA.** **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 8.7.2003 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, BUILDING SUB DIVISION, KOTTARAKKARA.** **EXHIBIT P3 TRUE COPY OF THE G.O.(P) NO.501/2005/FIN DATED 25.11.2005.** - **EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 5.3.2009 IN WPC NO.7140/2009.** - **EXHIBIT P5 TRUE COPY OF THE ISSUED G.O(RT) NO.2860/2009/RD DATED 14.8.2009.** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 2.11.2009 IN CC (C) NO.852/2009. ANNEXURE A2: TRUE COPY OF COUNTER AFFIDAVIT DT.19.2.2011 FILED BY THE SECOND PETITIONER.** - **ANNEXURE A3: TRUE COPY OF AFFIDAVIT FILED BY THE 3RD PETITIONER ON 17.2.2012 ALONG WITH EXT.R3(A) TO EXT.R3(C)** **EXHIBIT R3(A):** - **TRUE COPY OF CERTIFICATE NO.D4/300/06 DT.22.6.2006 OF ASSISTANT EXECUTIVE ENGINEER, PWD BUILDINGS SUB DIVISION, KOTTARAKKARA.** - **EXHIBIT R3(B): TRUE COPY OF CERTIFICATE NO.KBS 3/2006 DT.20.6.2009.** - **EXHIBIT R3(C): TRUE COPY OF THE ANNUAL GPF ACCOUNTS STATEMENT OF THE APPLICANT.** OP(KAT)No.73/2019 9 **ANNEXURE A4: TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT.** **ANNEXURE A5: TRUE COPY OF ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DT.1.6.2018.**