OP(KAT) No.86 of 2021 (Arising out of OA No.1917 of 2016, Kerala Administrative Tribunal, Thiruvananthapuram Bench)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **& THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** ## **OP(KAT).No.86 OF 2021** **AGAINST THE ORDER DATED 20.8.2019 IN O.A.NO.1917/2016 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 TO 4 IN O.A.:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001.** - **2 THE DIRECTOR OF HEALTH SERVICES THIRUVANANTHAPURAM PIN 695 035** - **3 THE DISTRICT MEDICAL OFFICER GENERAL HOSPITAL, ERNAKULAM PIN 682 011** - **4 THE SUPERINTENDENT GOVERNMENT HOSPITAL, KOOTHATTUKULAM, ERNAKULAM PIN 686 662** ## **BY SR. GOVERNMENT PLEADER SRI.B.VINOD** ## **RESPONDENTS/APPLICANT & 5TH & 6TH RESPONDENTS IN O.A.:** - **1 BABY JOSEPH AGED 60 YEARS, S/O.JOSEPH, PART TIME SWEEPER, GOVERNMENT HOSPITAL, KOOTHATTUKULAM, PIN 686 662, RESIDING AT 'THADIKKADAYIL HOUSE', MUTHOLAPURAM P.O., ERNAKULAM PIN 686 665** - **2 MOLLY PONNAN 'KADAIKATHU HOUSE', PAMPAKUDA P.O.,PAMPAKUDA, ERNAKULAM, PIN 686 691.** O.P.(KAT)No.86/2021 2 **3 SARASU MOHAN, 'CHIRAPATT HOUSE', KOOTHATTUKULAM, KOZHIPILLY, ERNAKULAM PIN 686 691** **R1 BY ADV. SRI.M.SASINDRAN R2-3 BY ADV. SRI.P.V.SANTHOSH JOSE R2-3 BY ADV. SRI.BRISTO S PARIYARAM R2-3 BY ADV. SMT.ANJALY N.S.** **THIS OP (KAT) HAVING COME UP FOR ADMISSION ON 07.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT)No.86/2021 3 ## **ALEXANDER THOMAS & K.BABU, JJ.** -------------------------------------------------------------------------- ## O.P.(KAT) No.86 of 2021 (Arising out of the order dated 20.8.2019 in O.A.No.1917 of 2016 of Kerala Administrative Tribunal, Thiruvananthapuram Bench) -------------------------------------------------------------------------- Dated this the 7[th] day of April, 2021 ## _**JUDGMENT**_ ## _K.Babu, J._ The prayers in the aforecaptioned O.P.(KAT) filed under Articles 226 and 227 of the Constitution of India are as follows : - _“(i) To set aside Exhibit P4 order of the Kerala Administrative Tribunal in O.A.No.1917/2016 ;_ - _(ii) To dismiss Exhibit P1 Original Application No.1917/2016 filed by the first respondent before the Kerala Administrative Tribunal, declaring that the first respondent is not at all eligible for getting regularised in service as part time sweeper as claimed in Exhibit P1 Original Application ; and_ - _(iii) Any other order or direction as this Tribunal may deem fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri.B.Vinod, learned Senior Government Pleader appearing for the petitioners and Sri.M.Sasindran, learned counsel appearing for the respondents. 3. Respondent No.1 (the original applicant) had filed Exhibit P1 Original Application No.1917 of 2016 before the KAT, Thiruvananthapuram, with the following prayers: O.P.(KAT)No.86/2021 4 - _“(i) Call for the records leading to Annexure A9 and set aside the same ;_ - _(ii) Issue an order directing the first respondent to recall Annexure A9 and to issue orders regularising the applicant as part time sweeper in the existing sanctioned post at Government Hospital, Koothattukulam in Ernakulam District in the light of Annexure A3 and Annexure A7 Government Orders ;_ - _(iii) Declare that the applicant is entitled to be regularised as part time sweeper in the existing sanctioned post at Government Hospital, Koothattukulam in Ernakulam District in the light of Annexure A3 and Annexure A7 Government Orders, and the rejection of the request is unsustainable ; and_ - _(iv) issue such other order or direction which this Tribunal may deem fit to grant in the facts and circumstances of the case. ”_ 4. The Tribunal, after hearing both sides, passed Exhibit P4 order dated 20.8.2019 directing petitioner No.1/respondent No.1 in the O.A. to issue necessary orders regularising the service of the original applicant as part time sweeper in terms of Annexure A3 Government Order, G.O.(P) No.501/2005/Fin., dated 25.11.2005, within a period of three months from the date of receipt of a copy of the said order. 5. The original applicant, a person suffering from 40% physical disability, has been working as a casual sweeper in the Government Hospital, Koothattukulam since September 1999. He approached this Court by filing Writ Petition No.27313 of 2004 seeking regularisation in service as part time sweeper. This Court, as O.P.(KAT)No.86/2021 5 per Annexure A4 judgment dated 15.3.2006 in W.P.(C) No.27313 of 2004, directed the official respondents in the O.A. to take a decision on the claim of the original applicant for regularisation. During pendency of the Writ Petition, the Government issued Annexure A3 Government Order. The claim of the original applicant was rejected by the Government as per Annexure A6 Government Order, G.O.(Rt) No.122/2007/H&FWD dated 12.1.2007 stating that Annexure A3 order is not applicable to the case of the original applicant as he was engaged only on daily wages basis against a sanctioned post of part time sweeper. 6. The original applicant challenged Annexure A6 Government Order before this Court by filing W.P.(C) No.3583 of 2007, which was later transferred to the Tribunal and renumbered as T.A.No.4568 of 2012. While T.A.No.4568 of 2012 was pending before the Tribunal, the Government issued Annexure A7 Government Order, G.O.(P).No.61/2010/Fin. dated 9.2.2010, wherein 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, defined in Annexure A3 Government Order, provided their appointments are made on or before the issuance of the said order and were continuing as such on O.P.(KAT)No.86/2021 6 ## the date of the order. 7. T.A.No.4568 of 2012 was disposed of by the Tribunal on 18.2.2015 holding that the claim of the applicant is covered by Annexure A7 Government Order dated 9.2.2010 and consequently, the Tribunal quashed Annexure A6 G.O. dated 12.1.2007 and remitted the matter to the Government for taking fresh decision in accordance with Annexure A7 G.O. read with Annexure A3 G.O. 8. The Government again considered the claim of the applicant and rejected the same as per Annexure A9 G.O.(Rt) No.1648/2016/H&FWD dated 14.6.2016 stating that three persons, including the original applicant, have been working in the sanctioned post on rotation basis and if claim for regularisation of the original applicant is positively considered, the two others also will make similar claims for regularisation. The Government took the view that daily wages employees cannot be regularised in view of the law declared by the Apex Court in _**State of Karnataka v. Umadevi [AIR (2006) SC 1806]**_ . 9. Learned counsel for the original applicant submitted that the applicant has been working as casual sweeper since 1999 in the Government Hospital, Koothattukulam. He relied on _**Mercy v. State of Kerala [2004 (2) KLT 848]**_ and Annexure A7 G.O. read O.P.(KAT)No.86/2021 7 with Annexure A3 G.O. in support of the case of the applicant that he is entitled to regularisation. 10. Learned Government Pleader submits that as three persons, including the original applicant, have been working against the sanctioned post on rotation basis, regularisation of the applicant is practically impossible. Learned Government Pleader further submits that the other two casual sweepers, who were impleaded as respondents 2 and 3 in the Original Petition, have also claimed regularisation by submitting Exhibits P5 and P6 applications dated 2.11.2019 before the fourth respondent. 11. Based on the directions issued by this Court in _Mercy v. State of Kerala_ (supra), the Government had issued Annexure A3 Government Order [G.O.(P) No.501/2005/Fin., dated 25.11.2005] framing guidelines for regularisation of part time sweepers and creation of posts on the basis of sweeping area. Subsequently the Government issued Annexure A7 order dated 9.2.2010, wherein it was made clear that in cases where sweepers were engaged against the exiting sanctioned posts for any reason shall also be entitled to regularisation, provided the date of appointment was on or before 25.11.2005. 12. The Original Applicant has been continuously working O.P.(KAT)No.86/2021 8 since September 1999 and hence based on Annexure A7 Government Order read with Annexure A3 Government Order, he is entitled to regularisation. The impugned Annexure A9 Government Order dated 14.6.2016 was issued rejecting the claim of the original applicant on the ground that if the original applicant is regularised, two others, who are working on rotation basis against the same post, will also claim for regularisation. Those two sweepers (respondents 2 and 3 herein) were impleaded as respondents 5 and 6 in the Original Application. Though they entered appearance, they failed to challenge the claim of the original applicant. As they did not oppose the claim of the applicant, the necessary presumption is that they have practically relinquished their claim for regularisation. The contention of the learned Government Pleader to the effect that respondents 2 and 3 (additional respondents 5 and 6 in the O.A.), who were engaged by the official respondents against the same post have raised their claim by filing Exhibits P5 and P6 is not tenable as they had already relinquished their claim in the original proceedings. 13. We are of the considered view that if only one sweeper can be regularised, the original applicant alone can be considered for the post in view of the fact that the other respondents have already relinquished their claim. The resultant conclusion is that the O.P.(KAT)No.86/2021 9 Tribunal has not committed any illegality or unreasonableness in rendering the impugned Exhibit P4 final order dated 20.8.2019 and the matter does not require interdiction at the hands of this Court in exercise of the powers of the judicial review and superintendence conferred under Articles 226 & 227 of the Constitution of India. 14. Accordingly, it is ordered that the petitioners/official respondents in the O.A. shall ensure that the directions and orders rendered by the Tribunal in the impugned Exhibit P4 final order dated 20.8.2019 in favour of the original applicant is implemented and complied with, within an outer time limit of six weeks from the date of receipt of a copy of this judgment. With these observations and directions, the Original Petition will stand dismissed. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- ## **K. BABU, JUDGE** csl O.P.(KAT)No.86/2021 10 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A.NO.1917/16 ALONG WITH ANNEXURES BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** **ANNEXURE A1 TRUE COPY OF THE DISABILITY CERTIFICATE.** - **ANNEXURE A2 TRUE COPY OF THE REGISTRATION CARD ISSUED FROM THE EMPLOYMENT EXCHANGE** - **ANNEXURE A3 TRUE COPY OF THE GO(P) NO.501/2005/FIN. DATED 25.11.2005** - **ANNEXURE A4 TRUE COPY OF THE JUDGMENT IN WP(C) NO.27313/2004 DATED 15.3.2006** - **ANNEXURE A5 TRUE COPY OF THE REPRESENTATION DATED 24.3.2006** - **ANNEXURE A6 TRUE COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT BEARING NO.GO(RT) NO.122/2007/H & FWD DATED 12.1.2007** - **ANNEXURE A7 TRUE COPY OF THE GO(P) NO.61/2010/FIN. DATED 9.2.2010** - **ANNEXURE A8 TRUE COPY OF THE ORDER IN TA 4568/2012 DATED 18.2.2015 OF THE KERALA ADMINISTRATIVE TRIBUNAL.** - **ANNEXURE A9 TRUE COPY OF THE GO(RT) NO.1648/2016/HEALTH AND FAMILY WELFARE DEPARTMENT DATED 14.6.2016** - **ANNEXURE A10 TRUE COPY OF THE QUESTIONNAIRE OF THE APPLICANT DATED 8.10.2013 UNDER THE RIGHT TO INFORMATION ACT.** - **ANNEXURE A11 TRUE COPY OF THE REPLY BY THE MEDICAL OFFICER IN CHARGE COMMUNITY HEALTH CENTRE, KOOTHATTUKULAM DATED 6.11.2013** - **EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 19.8.2016 IN O.A. 1917/16.** O.P.(KAT)No.86/2021 11 |**EXHIBIT P3**|**TRUE COPY OF THE REPLY STATEMENT FILED**| |---|---| ||**BY THE 1ST PETITIONER ON 29.1.2018**| |**EXHIBIT P4**|**TRUE COPY OF THE IMPUGNED ORDER OF THE**| ||**TRIBUNAL DATED 20.8.2019 IN OA .1917/16**| |**EXHIBIT P5**|**TRUE COPY OF THE REPRESENTATION**| ||**SUBMITTED BY THE 2ND RESPONDENT DATED**| ||**2.11.2019**| |**EXHIBIT P6**|**TRUE COPY OF THE REPRESENTATION**| ||**SUBMITTED BY THE 3RD RESPONDENT DATED**| ||**2.11.2019.**|