Santosh K. Keezhhanathazhekuniyil v. State of Kerala, Keezhariyur Grama Panchayath, and Sreeja K.K. (WA Nos. 1531/2013 and 1582/2013)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW FRIDAY, THE 14TH DAY OF MARCH 2014/23RD PHALGUNA, 1935 WA.No. 1531 of 2013 () IN WP(C).8423/2012 ------------------------------------------- AGAINST THE ORDER/JUDGMENT IN WP(C) 8423/2012 of HIGH COURT OF KERALA DATED 12-06-2013 APPELLANT(S)/PETITIONER IN THE WRIT PETITION: --------------------------------------------------------------------- ------------------- SANTHOSH K. KEEZHANATHAZHEKUNIYIL HOUSE, P.O.THUNERI, NADAPURAM KOZHIKKODE DISTRICT. BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SRI.SHARATH KUMAR K.T RESPONDENT(S)/RESPONDENTS IN THE WRIT PETITION: -------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY, FINANCE DEPARTMENT SECRETARIAT, TRIVANDRUM-695 001. 2. KEEZHARIYUR GRAMA PANCHAYATH REP. BY ITS SECRETARY KEEZHARIYUR GRAMA PANCHAYATH.P.O., KEEZHARIYUR KOZHIKKODE-673 307. 3. SREEJA.K.K RAAROTH MEETHAL VEEDU, P.O.NADUVATHUR, KOYILANDY KOZHIKKODE-673 330. R1 BY SPL. GOVERNMENT PLEADER SHRI SUNIC CYRIAC R2 BY ADV. SRI.SANTHARAM.P R3 BY ADV. SHRI ELVIN PETER THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2014, ALONG WITH WA. 1582/2013, THE COURT ON 14/3/2014 DELIVERED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & K. ABRAHAM MATHEW, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.A. Nos.1531 and 1582 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 14TH DAY OF MARCH, 2014** ## **JUDGMENT** ## Ramachandran Nair, J. These writ appeals have been filed against the common judgment in W.P.(C) Nos.30803/2011 and 8423/2012. W.A. No.1531/2013 was taken as the leading case. 2. We heard learned counsel for the appellant, Shri George Varghese Perumpallikuttiyil, learned Government Pleader appearing for the first respondent, Shri P. Santharam, learned counsel appearing for the second respondent Panchayat and Shri Elvin Peter, learned counsel appearing for the third respondent. 3. The subject matter of the dispute relates to the filling up of the post of Part-time Sweeper in the second respondent Panchayat. The third respondent was appointed by the Panchayat when the Part-time Sweeper working therein was promoted. She was appointed from 5.5.2003. In W.P. (C) No.30803/2011 the third respondent approached this Court apprehending termination and seeking the benefit of Ext.P3 Government W.A.Nos.1531 & 1582/2013 -2- Order for regularisation. The Panchayat had given a reply as per Ext.P4 therein stating that her claim for regularisation as Part-time Sweeper cannot be considered. W.P.(C) No.8423/2012 is filed by the appellant seeking to appoint him as Part-time Sweeper as he was sponsored through the Employment Exchange. 4. The learned Single Judge found that Ext.P3 Government Order produced in W.P.(C) No.30803/2011 is not the one that is applicable, but the petitioner in W.P.(C) No.30803/2011 is entitled for the benefit of Exts.R2(b) and R2(c) Government Orders produced by the Government in their counter affidavit. The Government, in its counter affidavit had explained that she is entitled for the benefit of the scheme framed by those two orders. Based on the same, the Panchayat was bound to forward a proper proposal and accordingly the Government was directed to take a decision. Therefore, the writ petition was disposed of directing the Panchayat to send a proposal to the Government in terms of Exts.R2(b) and R2(c) within a period of one month from the date of receipt of a copy of the judgment and the Government was directed to pass appropriate orders in the matter. The same is under challenge in the writ appeals. W.A.Nos.1531 & 1582/2013 -3- 5. Before going into the merits of the contentions, we will refer to the claim raised by the third respondent in W.A. No.1531/2013. According to her, she was appointed as per the resolution, Ext.P1 produced in W.P.(C) No.30803/2011. Ext.P3 is the Government Order prescribing guidelines for regularisation of existing eligible casual sweepers and appointments against future arising vacancies of sweepers in State public sector undertakings/Boards/Autonomous Institutions, etc. The Panchayat refused to consider her claim by stating that she has not completed ten years of service. The Panchayat in their counter affidavit filed in W.P.(C) No.30803/2011, submitted that as per Ext.R2(a) circular dated 21.12.2010 the Director of Panchayats has informed that any appointment of Part-time contingent employees will have to be made from the list forwarded by the local Employment Exchange. 6. The Government in the counter affidavit filed in the said writ petition, submitted that Ext.P3 Government Order produced in W.P.(C) NO.30803/2011 will apply for engagement in State Public Sector Undertakings/Boards/Autonomous institutions. But as far as the regularisation of eligible part-time sweepers is concerned, the Government W.A.Nos.1531 & 1582/2013 -4- has framed a scheme as per Ext.R2(b) dated 25.11.2005 as well as Ext.R2(c) dated 9.2.2010. Since the third respondent (petitioner in W.P.(C) NO.30803/2011) was engaged as Part-time Sweeper on daily wage basis, her claim will have to be examined as Exts.R2(b) and R2(c). It was pointed out that going by Ext.R2(c), persons who have been engaged prior to 25.11.2005 will be entitled for regularisation. Ext.P1 produced therein will show that the third respondent was engaged as sweeper on daily wage basis from 5.5.2003 against a sanctioned post of Part-time Sweeper. Hence, she is entitled for regularisation in service. Apart from the same, it was pointed out that selection process through employment exchange was ordered only for appointment of Part-time Sweepers in new offices and against vacancies arising in future. Therefore, the actions of the Panchayat in calling for a list of eligible candidates from the employment exchange and conducting an interview also, were not proper. 7. Learned counsel for the appellant submitted that the appellant's name was sponsored through employment exchange for appointment as Part-time Sweeper. It is submitted that in the case of the third respondent, Ext.P3 Government Order produced in W.P.(C) No.30803/2011 was found W.A.Nos.1531 & 1582/2013 -5- inapplicable. Based on the submission made by the Government in its counter affidavit, her claim ought not to have been directed to be considered. Learned counsel further submitted that Exts.R2(b) and R2(c) Government Orders prescribing a scheme for regularisation of Part-time Sweepers also, cannot come to the rescue of the third respondent. It is further submitted that Section 180 of the Panchayat Raj Act will show that all employees of the Panchayat, other than contingent employees shall be Government servants. Therefore, as far as Part-time contingent employees are concerned, their case will not come within Exts.R2(b) and R2(c) Government Orders. It is further submitted that at any rate, the scheme Exts.R2(b) and R2(c) will go against the principles stated by the Apex Court in **State of Karnataka v. Uma Devi** {(2006) 4 SCC 1}. He also relied upon the dictum laid down by the Apex Court in **State of Rajasthan and others v. Daya Lal and others** {(2011) 2 SCC 429} and **Union of India and another v. Arulmozhi Iniarasu and others** {(2011) 7 SCC 397} following the decision in **Uma Devi's case** (supra). 8. Learned Special Government Pleader, Shri Sunil Cyriac and the learned counsel appearing for the third respondent Shri Elvin Peter W.A.Nos.1531 & 1582/2013 -6- submitted that as far as Part-time contingent employees in Panchayats are concerned, the benefits of the very same scheme framed for other categories in Government, etc. has been extended to them. In the counter affidavit filed by the third respondent, those orders have been produced. Based on the judgment of the learned Single Judge, the claim was examined by the Government and the Government has passed an order on 24.12.2013 regularising the service of the third respondent as Part-time Sweeper in the Panchayat concerned, from 9.2.2010 and therefore no interference is called for. It is also submitted that the scheme framed by the Government as per Ext.R2(b) is based on the judgment of this Court in a batch of cases in O.P.No.30927/2003 and connected cases and the directions issued in W.A. No.1863/2004 and connected cases. 9. Section 180 of the Panchayat Raj Act will show that Part-time contingent employees shall not be treated as Government employees under the Panchayats. The post herein is that of a part-time sweeper. There was a sanctioned post in the Panchayat which is evident from Ext.P1 resolution produced in W.P.(C) No.30803/2011. By the same, it is resolved that the third respondent's engagement as Part-time sweeper is accepted and W.A.Nos.1531 & 1582/2013 -7- this will be subject to payment of daily wages and till a permanent employment is made. 10. We will come to the question of applicability of Exts.R2(b) and R2(c) Government Orders as far as the regularisation of Part-time contingent employees are concerned. A reading of Ext.R2(b) will show that various Government Orders were there in force with regard to the engagement of Part-time sweepers. Classifications were made for payment of remuneration based on the sweeping area, i.e. if the sweeping area is 800 sq. mtrs. or more, a full time post of sweeper is to be created and if the sweeping area is more than 100 sq. mtrs. but below 800 sq. mtrs, a post of part-time contingent sweeper is to be created by the Government. For a sweeping area between 400-800 sq. mtrs., the remuneration fixed is Rs.1500/- per month + D.A. and for sweeping area of 100-400 sq. mtrs., the remuneration fixed is Rs.1250/- per month + D.A. This Court, in a batch of cases, had addressed various questions, since complaints were raised that there was no proper assessment of sweeping area in many cases and there was no proper guidelines to fix sweeping areas also. Various aspects were considered by this Court after going through the various Government W.A.Nos.1531 & 1582/2013 -8- Orders issued from time to time. The judgment of the learned Single Judge in the batch of cases is dated 18.6.2004. Ext.R2(b) refers to the directions issued by this Court in para 5 as well as the Government Order issued thereafter on 2.8.2005. Reference is made about the judgment in the writ appeals also, whereby certain directions have been issued to the effect that Government Order dated 2.8.2005 will be revised with certain amendments. Accordingly, the Government cancelled the order dated 2.8.2005 and issued Ext.R2(b) order. 11. The appendix to Ext.R2(b) gives the definition of 'sweeping area'. Various guidelines have been fixed as to how it will have to be measured and calculated. Sweeping area will have to be assessed and certified by an officer of the P.W.D. Buildings Division, not below the rank of an Assistant Engineer. 12. Going by Ext.R2(b), part-time sweepers who have been engaged prior to the said Government Order, are entitled for consideration of the benefits. It is also clear from the said Government Order that wherever the sweeping area is below 100 sq. mtrs. only casual sweepers can be appointed and a post of Part-time contingent employee will have to be created W.A.Nos.1531 & 1582/2013 -9- depending upon the sweeping area. 13. Ext.R2(c) is the Government Order dated 9.2.2010 clarifying certain points also and by introducing certain modifications with regard to the conditions provided in Ext.R2(b). 14. Even though learned counsel for the appellant submitted that the above two Government Orders will not apply to the Part-time contingent employees of the Panchayats are concerned, the said contention cannot be accepted, in the light of the documents produced by the third respondent (first respondent in W.A.No.1582/2013). Ext.R1(a) produced in W.A. No.1582/2013 is the Government Order dated 8.5.2006 making applicable Exts.R2(b) and R2(c) orders in respect of Panchayats also. Therefore, there is no merit in the contention of the learned counsel for the appellant that Exts.R2(b) and R2(c) orders are not applicable to Panchayats. Learned Government Pleader also submitted that as far as Panchayats are concerned, those Government Orders have been made applicable to such employees. 15. The third respondent in W.A. No.1581/2013 was engaged, evidently, in the year 2003, i.e. prior to the date of coming into force of Government Order, Ext.R2(b) dated 25.11.2005. Since the scheme gives W.A.Nos.1531 & 1582/2013 -10- benefits to those persons who have been working as Part-time Sweepers as on that date, clearly she is entitled for the benefit of the said scheme. The learned Single Judge was therefore right in directing the Government to consider the claim of the third respondent based on Exts.R2(b) and R2(c) produced along with the counter affidavit in the writ petition. Of course, the third respondent was banking on another Government Order, viz. Ext.P3 produced in W.P.(C) No.30803/2011, but the Government in their counter affidavit submitted that it was not that Government Order which was applicable and the Government Orders applicable are Exts.R2(b) and R2(c) produced by the Government. Merely because the third respondent had relied upon a wrong order, if she was really entitled the benefits on the basis of a proper order, nothing prevented the court from accepting the real position. The learned Government Pleader submitted before this Court that she is entitled for the benefit of those Government Orders and we find that no error has been committed by the learned Single Judge in considering the claim of the third respondent in terms of Exts.R2(b) and R2(c) produced by the Government along with their counter affidavit filed in W.P.(C) NO.30803/2011 and the contention of the appellant on that score is rejected. W.A.Nos.1531 & 1582/2013 -11- 16. The learned Single Judge found that the argument raised by the learned counsel for the appellant relying upon paragraphs 53 and 54 of the judgment in **Uma Devi's case** {(2006) 4 SCC 1} cannot help the appellant. Learned counsel for the appellant submitted that in para 53 of the judgment, the Apex Court has directed consideration of claims of various employees for regularisation in terms of the principles stated by the Apex Court in that decision and to regularise as a one-time measure, the services of such irregularly appointed persons, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals. It is submitted by the learned counsel that in para 54, the Apex Court was pleased to clarify that those decisions which run counter to the principle settled in the said decision, or in which directions running counter to what their Lordships have held therein, will stand denuded of their status as precedents. It is submitted that in the light of the above, the direction issued by the learned Single Judge in the batch of cases in W.P.(C) No.30927/2003 and in the writ appeals affirming the same, based on which Ext.R2(b) Government Order was issued, cannot help the third respondent. 17. In fact, the scheme framed herein as Ext.R2(b) is dated W.A.Nos.1531 & 1582/2013 -12- 25.11.2005. That was necessitated since there was no proper guidelines for fixing the sweeping area as far as Government offices are concerned. Therefore, in that scheme the term 'sweeping area' has been defined and various guidelines have been provided for fixing the sweeping area. It cannot be said that the Government has no power to fix guidelines providing sweeping area. It was purely a one time scheme framed at that point of time, since various infirmities have been found out by this Court leading to arbitrary actions as far as payment of benefits to Part-time sweepers are concerned, which have been later verified by the Government also. Therefore, we do not subscribe to the argument of the learned counsel for the appellant that the scheme framed as per Exts.R2(b) and R2(c) suffers from any infirmity. Apart from the same, the scheme itself was not under challenge by the appellant before the learned Single Judge in any manner. In that view of the matter, the judgment in **Uma Devi's case** (supra), which is heavily relied upon by the learned counsel for the appellant, will not help the appellant to advance his arguments. 18. Two of the decisions relied upon by the learned counsel for the appellant are: **State of Rajasthan and others v. Daya Lal and others** W.A.Nos.1531 & 1582/2013 -13- {(2011) 2 SCC 429} and **Union of India and another v. Arulmozhi Iniarasu and others** {(2011) 7 SCC 397}. In the first of the decisions, the facts show that the same relates to persons temporarily appointed as Assistant Superintendents in 1985 and 1986 in aided hostels as well as a person temporarily appointed as a Superintendent on 30.6.1996 in an aided hostel. The contention was that they have been appointed on full-time basis and have been discharging functions similar to those of Superintendents in Government hostels. They sought for regularisation in the post of Hostel Superintendent from the date of initial appointment and payment of salary on a par with Hostel Superintendent of Class C hostels of the Social Welfare Department. In the second batch of cases persons who were appointed as Part-time cooks/chowkidars in Government hostels claimed that there was a scheme for regularisation of part-time cooks and chowkidars who were working as on 1.5.1995 and therefore the Government should be directed to bring in another scheme so as to benefit them. In the writ petitions, the learned Judge issued a direction to the State Government to frame a scheme for the benefit of part-time cooks and chowkidars who are serving as on 1.1.1995. In the other batch of cases also certain directions were issued for W.A.Nos.1531 & 1582/2013 -14- regularisation of such employees. 19. The two questions considered are evident from para 11 of the judgment. The Apex Court, in para 12, referred to the well settled principles relating to regularisation and sub para (iii) states that “Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.” Reliance is placed on para 21 of the judgment. We extract the same as under: “12. The decision relied upon by the High Court namely the decision in _Anshkalin Samaj Kalyan Sangh_ of the High Court no doubt directed the State Government to frame a scheme for regularization of part-time cooks and chowkidars. It is clear from the said decision, that such scheme was intended to be a one-time measure. Further said decision was rendered by the High Court prior to _Uma Devi_ (AIR 2006 SC 1806 : 2006 AIR SCW 1991), relying upon the W.A.Nos.1531 & 1582/2013 -15- decision of this Court in _Daily Rated Casual Labour v. Union of India_ [1988 (1) SCC 122] : (AIR 1987 SC 2347); _Bhagwati Prasad v. Delhi State Mineral Development Corporation_ [1990 (1) SCC 361]: (AIR 1990 SC 371) and _Dharwad District PWD Literate Dalit Wage Employees Association vs. State of Karnataka_ [1990 (2) SCC 396] : (AIR 1990 SC 883). These directions were considered, explained and in fact, overruled by the Constitution Bench in _Uma Devi_ . The decision in _Anshkalin Samaj Kalyan Sangh_ is no longer good law. At all events, even if there was any one time scheme for regularisation of those who were in service prior to 1.5.1995, there cannot obviously be successive directions for scheme after scheme for regularization of irregular or part-time appointments. Therefore the said decision is of no assistance.” According to the learned counsel for the appellant, the above paragraph will show that the scheme framed herein as per Ext.R2(b) is also bad. We cannot agree. Of course, the Apex Court has stated that the decision of the High Court in **Anshkalin Samaj Kalyan Singh's case** (W.P.No.3453/1994) may not be a good law in the light of **Uma Devi's case** (supra). But it is seen that the Apex Court has finally stated that “there cannot obviously be successive directions based on the said judgment, even if there was a onetime scheme for regularisation for those who were in service prior to W.A.Nos.1531 & 1582/2013 -16- ## 1.5.1995.” 20. Herein, the regularisation as per Ext.R2(b) is as a one-time measure and for extending the benefit of that scheme it is not required to extend the cut-off date also as far as the third respondent is concerned. The facts of the said case have no parallel with the facts of this case, as mainly it was a case where persons appointed after the cut-off date approached the court for framing a new scheme. 21. In **Arulmozhi Iniarasu's case** {(2011) 7 SCC 397} the facts show that there was a scheme framed in the year 1993 which was notified on 10.9.1993 for conferring temporary status and regularisation of casual workers, who were in employment on 1.9.1993. The party respondents were engaged as part-time contingent casual sweepers purely on temporary basis in the year 1999. They approached the Central Administrative Tribunal, Madras Bench seeking relaxation of five years and three years respectively to SC/ST and OBC candidates in age-limit for being considered for selection to the post of Sepoy in the Central Excise Department, Ministry of Finance, Government of India, based on their engagement on temporary basis and the period of such engagement. The Tribunal, on the basis of the W.A.Nos.1531 & 1582/2013 -17- decision in **Nagendra Chandra v. State of Jharkhand** {(2008) 1 SCC 798}, directed to grant relaxation. The Apex Court found that the dictum laid down in the said case could not have been applied to the facts of the present case. It was finally held that merely because the respondents continued for some time, that cannot give them a benefit for claiming relaxation from the age limit. In para 23, it has been held as follows: “23.It is plain from the terms of the letter of appointment that the respondents were told in unambiguous terms that their appointments were temporary and would not confer any right to claim any permanent post in the department. It is not the case of the respondents that at any point of time, during their engagements with the appellants, a promise was held out to them by the appellants that they would be absorbed as regular employees of the department. In fact, no such promise could be held out in view of the Government O.M. dated 7th June, 1988 banning the employment of persons in regular posts.” We find that the facts of the said case are quite different from those available herein and the said dictum cannot help the appellant herein. 22. The scheme under Ext.R2(b) dated 25.11.2005 is as a one-time measure. That has been made applicable to contingent employees of the W.A.Nos.1531 & 1582/2013 -18- Panchayats also. Therefore, this is not a case where the case of a person not covered under the scheme was directed to be considered by the learned Single Judge, whereas it is actually a case where the third respondent was entitled for the benefit of that scheme. 23. Apart from the same, as far as the appellant is concerned, true that he was sponsored by the employment exchange. It has been made clear by the Government in their counter affidavit that in the scheme Ext.R2(b), it has been clearly stated that the selection process through employment exchange will be only for appointment of part-time sweepers in new offices and against vacancies arising in future. Therefore, the action of the second respondent Panchayat in calling for a list of eligible persons and in conducting an interview was also irregular. Hence, merely because the appellant was sponsored through employment exchange, in the light of the factual position explained by the Government in their counter affidavit, that will not confer on him any right for appointment and as rightly held by the learned Single Judge, the mandamus sought for by the appellant in W.P.(C) NO.8423/2013 was not liable to be granted. The appellant was never appointed by the Panchayat and merely because he has undergone an W.A.Nos.1531 & 1582/2013 -19- interview, he cannot seek a direction that he should be appointed. As the claim of the third respondent was not properly considered by the Panchayat in terms of Ext.R2(b), he cannot also object to the Panchayat submitting a proposal of the third respondent in terms of Exts.R2(b) and R2(c). The learned Single Judge was therefore right in directing the Panchayat to forward a proposal to the Government in terms of Ext.R2(b) and in directing the Government to consider that proposal. For all these reasons, we dismiss the appeals, confirming the judgment of the learned Single Judge. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(K. ABRAHAM MATHEW, JUDGE)** **kav/**