State of Kerala and its officers v. Omana K. and others

O.P.(KAT) No.461 of 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.461 OF 2019** **AGAINST THE ORDER IN TA 237/2014 DATED 04-10-2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONERS/RESPONDENTS IN TA: 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2 THE DIRECTOR OF PANCHAYAT, THIRUVANANTHAPURAM, PIN-695 001. 3 THE DEPUTY DIRECTOR OF PANCHAYAT, PATHANAMTHITTA, PIN-689 001. BY SR. GOVERNMENT PLEADER SRI B. VINOD RESPONDENTS/APPLICANT/4TH RESPONDENT IN TA: 1 OMANA K., PART TIME CASUAL SWEEPER, MALAYALAPPUZHA GRAMA PANCHAYAT, MALAYALAPPUZHA P.O., PATHANAMTHITTA, PIN-689 666. 2 THE SECRETARY, MALAYALAPPUZHA GRAMA PANCHAYAT, MALAYALAPPUZHA P.O., PATHANAMTHITTA, PIN-689 666. R1 BY ADV. SRI.KALEESWARAM RAJ R1 BY ADV. KUM.A.ARUNA R1 BY ADV. SRI.VARUN C.VIJAY R1 BY ADV. SMT.RIYA RAYMOL IYPE R2 BY ADV. SRI.V.SETHUNATH R2 BY ADV. SRI.V.R.MANORANJAN (MUVATTUPUZHA)** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) No.461 of 2019 2 ## **ALEXANDER THOMAS & T.R. RAVI, JJ. -----------------------------------------------O.P.(KAT) No.461 of 2019** [ _Arising out of order dated 04.10.2018 in T.A.No. 237 of 2014 of KAT, Tvm._ ] **--------------------------------------------------** **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 4.10.2018 in T.A.No.237 of 2014 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 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 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 & Ors. v. M.M.Mercy & Ors. (W.A.No.1863 of 2004 and** O.P.(KAT) No.461 of 2019 3 **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. In the case on hand the respondent was working as parttime sweeper with effect from 05.01.2000. She had filed W.P.(C) No. 24684 of 2008 seeking regularisation, which was disposed of by O.P.(KAT) No.461 of 2019 4 Exhibit P1(TA1) judgment dated 17.3.2009, declaring that the respondent was entitled to be regularised as per the provisions contained in Government order dated 25.11.2005 and directing the 1[st] respondent therein to take appropriate action within a period of 3 months from the date of receipt of the copy of the judgment. The petitioners challenged Ext.P1(TA1) judgment by filing Writ appeal No. 2085 of 2009, which was dismissed by Exhibit P2(TA2) judgment dated 24.11.2009. All that remained thereafter was for the petitioners to pass orders regularising the respondent as a part time sweeper. The petitioners in purported compliance with the directions of this Court, issued Ext.P4(TA4) order dated 15.7.2010 directing regularisation of the respondent with effect from 9.2.2010. The above order was issued cancelling an order passed by the Panchayat appointing the respondent with effect from 18.6.2001. Consequently, the Panchayat issued orders seeking to recover the excess amounts paid to the respondent between 18.6.2001 to 1.8.2006. The respondent challenged the order granting regularisation to the extent it refused regularisation with effect from 18.6.2001. With total disregard to the earlier binding judgments _inter part_ e, the petitioners chose to contest the original application claiming that the respondent cannot have a better claim than what is granted O.P.(KAT) No.461 of 2019 5 and that the Government had the authority to regularise or not regularise the respondent. By order dated 1.4.2018, the Tribunal held that the petitioners were legally obliged as per GO(P)No.501/2005/Fin. dated 25.11.2005 to regularise the respondent with effect from 18.6.2001 and set aside the order directing regularisation only with effect from 9.2.2010 and directed to pass necessary orders granting regularisation with effect from 18.6.2001. It is a sorry state of affairs that the petitioners chose to challenge the above order also by filing this original petition. Before this Court, the contention of the petitioners is that the order of the Tribunal is against the Government orders issued for regularisation of temporary service of part-time sweepers and that the order will carry heavy financial burden upon the Government. 4. We are constrained to note that original petitions are being filed on behalf of the State unnecessarily and recklessly, even without ascertaining the facts involved in each case. This case is a typical example. The respondent was found entitled to be regularised as per the Government order dated 25.11.2005 as per Ext.P1(TA1) order dated 17.3.2009 and the said order was affirmed in an appeal filed by the State, by Ext.P2(TA2) judgment dated 24.11.2009. Unless the above O.P.(KAT) No.461 of 2019 6 said orders are set aside by a higher forum in a manner known to law, the petitioners are not entitled to contend any more that the respondent is not entitled to be regularised in terms of the Government order dated 25.11.2005. However, ignoring such well established and well recognised principles of law, aimed at the larger purpose of finality in litigation, unfortunately, the State has chosen to pass orders in total violation of the directions issued by limiting the regularisation with effect from a future date. The harassment of the respondent continued, even after driving the respondent to Court once again. Not only was the issue contested before the Tribunal, but the petitioners also chose to file this original petition. We restrain ourselves from making any further observation regarding the conduct of the petitioners. 5. No grounds have been made out for interference with the order of the Tribunal in exercise of the extraordinary and supervisory jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. The time granted by the Tribunal for compliance with the directions issued is long over. In the above circumstances, we deem it fit to grant the petitioners a further time of 6 weeks from the date of receipt of a certified copy of this judgment, to comply with the directions issued by the Tribunal in its order dated 4.10.2018 in O.P.(KAT) No.461 of 2019 7 T.A.No.237 of 2014. With the above modification of the order of the Tribunal, the original petition is dismissed. We refrain from ordering costs against the petitioners. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn O.P.(KAT) No.461 of 2019 8 ## **APPENDIX** ## **' PETITIONER S EXHIBITS:** **EXHIBIT P1(TA)** **A TRUE COPY OF THE TA NO.237/2014 ALONG WITH EXHIBITS P1 TO P5 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** - **EXHIBIT P1(TA1) TRUE COPY OF THE JUDGMENT DATED 17.03.2009 IN WPC NO.24684/2008.** - **EXHIBIT P1(TA2) TRUE COPY OF THE JUDGMENT DATED 21.11.2009 IN WA NO.2085/2009.** - **EXHIBIT P1(TA3)** - **TRUE COPY OF THE GO(P)NO.2314/10/LSGD DATED 15.07.2010.** **EXHIBIT P1(TA4) TRUE COPY OF THE ORDER NO.A1-97/07 DATED 18.08.2010.** - **EXHIBIT P1(TA5) TRUE COPY OF THE LETTER NO.A1/97/2007 DATED 19.08.2010.** - **EXHIBIT P2(TA)** - **TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE THIRD PETITIONER ON 18.06.2012.** **EXHIBIT P3(TA)** - **TRUE COPY OF THE FINAL ORDER DATED 04.10.2018 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL IN THE TRANSFERRED APPLICATION.** - **EXHIBIT P4(TA)** - **TRUE COPY OF GO(P)NO.61/2010/FIN DATED 09.02.2010.** - **EXHIBIT P5(TA) TRUE COPY OF THE GO(P)NO.31/2018/FIN DATED 03.03.2018.** **EXHIBIT P6(TA) TRUE COPY OF THE GO(P)NO.58/2018/FIN DATED 10.04.2018.**