State of Kerala and its Officers/Authorities v. Muraledhara Pisharady K.K.

OP(KAT)No.230/2019 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 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942** ## **OP(KAT).No.230 OF 2019** **AGAINST THE ORDER IN TA 4758/2012 DATED 28-09-2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN TA:** - **1 STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695001.** - **2 DIRECTOR OF AGRICULTURE, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN- 695001.** - **3 THE PRINCIPAL AGRICULTURE OFFICER, IDUKKI, PIN- 685001.** **BY SR. GOVERNMENT PLEADER SRI B. VINOD RESPONDENT/APPLICANT IN TA:** **MURALEDHARA PISHARADY.K.K., AGED 62 YEARS S/O.KARUNAKARA PISHARADY, PART TIME CASUAL SWEEPER, KRISHI BHAVAN, PEERMADE, IDUKKI DISTRICT, PIN- 685001, RESIDING AT PUTHUVELIL HOUSE, PEERMADE, IDUKKI DISTRICT, PIN- 685001.** **BY ADV. SRI.KALEESWARAM RAJ BY ADV. SRI.VARUN C.VIJAY BY ADV. KUM.A.ARUNA BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE BY ADV. KUM.THULASI K. RAJ** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 15.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT)No.230/2019 2 ## **ALEXANDER THOMAS & T.R. RAVI, JJ.** ## **-----------------------------------------------O.P.(KAT) No.230 of 2019** [ _Arising out of order dated 28.09.2018 in T.A.No. 4758 of 2012 of KAT, Tvm._ ] **--------------------------------------------------** **Dated this the 15[th] 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 28.9.2018 in T.A.No.4758 of 2012, 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 payment of arrears of pay to the respondent, consequent to his regularisation as part-time sweeper. By G.O.(P) No.831/80/Fin. dated 3.11.1980, the Government had sanctioned benefits to part time contingent employees, whereby the remuneration payable to them was revised. The revision was based on the sweeping area or the area to be cleaned by such part time contingent employees/sweepers. The rates were specified therein for OP(KAT)No.230/2019 3 two different types of cases depending on whether the sweeping area was less than 200 M[2 ] or more than 200 M[2] . Subsequently, by a pay revision order G.O.(P)No.3000/98/Fin. dated 25.11.1998 which came into effect on 01.03.1997, certain modifications were ordered. The categorisation was also different as per the 1998 pay revision. Accordingly, Part Time Sweepers who were sweeping an area above 100 M[2] but below 400 M[2] were to be paid at the revised rate of Rs.1,250/per month plus DA and persons who were sweeping an area above 400M[2 ] , but below 800 M[2] were to be paid at the rate of Rs.1,500/- per month plus DA. Enhanced pay was available to persons who were put in service as part time employees for 10 years, 20 years and 25 years. With respect to casual sweepers who were sweeping an area of less than 100 M[2] , the Government issued G.O.(P)No.3002/98/Fin. dated 25.11.1998 ordering that such persons will be paid at the rate of Rs.600/- per month with effect from 1.11.1998. 3. Faced with denial of pay in accordance with the pay revisions and threat of losing their engagement on the ground that they are casual sweepers, several persons approached this Court by way of writ petitions. In the meanwhile, the Government issued G.O.(P) No.390/03/Fin. dated 17.07.2003, which said that Part Time Sweepers should be engaged only for a period of two months and should be OP(KAT)No.230/2019 4 changed every two months. The above order was however withdrawn as per G.O.(P) No.500/2003/Fin. dated 25.9.2003. The Government thereafter issued letter No.28555/T1/03/RD dated 6.10.2003 clarifying that the sweeping area is the area excluding staircase, veranda, courtyard, etc. The order also said that if casual sweepers are appointed for two months and sweeping area is more than 100 M[2] they can be paid at par with part time sweepers and in cases where the area is below 100M[2] such persons are to be paid at the rate of Rs.600/- per month as a consolidated pay. There was also a direction to make appointments through Employment Exchange for the sanctioned post. 4. A learned Single Judge of this Court in the judgment in **Mercy v. State of Kerala** reported in [2004 (2) KLT 848] disposed of a batch of writ petitions with certain directions. In the cases before the learned Single Judge, the petitioners were all persons who were engaged prior to 6.10.2003 on which day, the Government had issued clarifications regarding the manner of calculation of sweeping area. It was directed that the sweeping area with regard to persons who were engaged prior to 6.10.2003 is to be calculated as the carpet area, veranda, corridor, staircase and the courtyard, usually swept. It was also held that, in any case, the area shall not exceed 1½ times the plinth area. It was further held that since the State had enjoyed the fruits of OP(KAT)No.230/2019 5 the labour of such persons, they shall not be terminated from service for the only reason that they have not been appointed through the Employment Exchange. The Court further directed that all the Part Time Sweepers who have approached the Court as well as those who have not approached the Court shall be paid wages including arrears on the basis of the 1997 pay revision order with effect from 01.03.1997. 5. The judgment of the learned Single Judge was carried in appeal by the State and its Officers. Pending the appeal, the Government issued GO(P)No.361/2005/Fin. dated 02.08.2005, whereby a scheme was evolved regarding regularisation of the existing eligible casual sweepers and regarding the appointments against future arising vacancies of sweepers in Government offices. A Division Bench of this Court disposed of the appeals filed by the State by judgment dated 12.08.2005 in **State of Kerala and Ors. v. M.M.Mercy and Ors. (W.A.No.1863 of 2004 and connected cases)** . After referring to the scheme proposed in G.O.(P) No.361/2005/Fin. dated 02.08.2005, the Division Bench noted that in the light of the Scheme framed, the issue remains in a narrow compass regarding the directions contained in paragraph 15 of the judgment of the learned Single Judge in the judgment in **Mercy v. State of Kerala** [2004 (2) KLT 848], relating to the payment of arrears. The Division Bench in paragraph 18 OP(KAT)No.230/2019 6 held that the sweeping area is a matter to be found on actual measurement at the instance of the respective officers under the supervision of the head of the district of the concerned Department with the aid of an Engineer from the Public Works Department, taking into account of the requirement of the offices concerned. It was further held that in cases where sweeping area is disputed, the same shall be fixed by causing actual measurement with notice to the incumbents concerned in their presence. On the basis of the judgment of the Division Bench, the Government modified the order dated 02.08.2005 and carved out a fresh a order GO(P)No.501/2005/Fin. dated 25.11.2005 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 OP(KAT)No.230/2019 7 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. Paragraph 11 of the Government order deals with cases where the sweeping area on remeasurement, increases from below 400 M[2] to above 400 M[2] , requiring the payment of higher remuneration. The order provided for a fresh certification of the sweeping area of the existing premises within one year from the date of the order. It also said that if the sweeping area on re-fixation reduces to below 100 M[2] , the existing incumbent shall continue to get Rs.1250/- plus DA which he was getting and that vacancy in the said post shall be filled up only by a casual sweeper, by paying Rs.600 per month. 6. The respondent herein was working as a part-time sweeper in Krishi Bhavan, Peermade with effect from 1.11.1987. He along with some others had filed W.P.(C)No.32170 of 2003 seeking the benefits of the Government orders in respect of wages. By judgment dated 14.10.2003, this Court directed the respondents therein to pass necessary orders. The petitioners thereafter paid the arrears of wages to the respondent in the year 2004. The respondent was also being paid the enhanced pay at the rate of 1250/- per month + Dearness OP(KAT)No.230/2019 8 Allowance. After January,2006, the pay of the respondent was reduced on the ground that the sweeping area has reduced to 79.34 M[2] . The respondent thereupon filed W.P.(C)No.37686 of 2008 for a direction to the petitioners to continue to pay the enhanced wages, as stipulated in paragraph 11 of G.O.(P) No. 501/2005/Fin. dated 25.11.2005. By judgment dated 16.3.2009, the writ petition was allowed by this Court directing the payment of wages at the rate of Rs.1250/- + DA was was being paid to him and to pay him the arrears from January, 2006. The Government thereafter issued G.O.(MS) No.200/09/AD dated 7.11.2009. However, respondent was paid at the rate of Rs.2100/+DA, instead of the rate of Rs.2300/- + DA, which was the revised rate against Rs.1250/- plus DA applicable to part time sweepers. It is in these circumstances that the respondent filed W.P.(C)No.16723/2011 before this Court. The said writ petition was transferred to the Tribunal and renumbered as T.A.No.4758 of 2012. While so, the Krishi Bhavan at Peerumed was shifted to a new building with more than 100 M[2] sweeping area and consequently, by order dated 25.7.2012, the respondent was regularised in service as part-time sweeper. 7. On the admitted facts, the Tribunal found that since the respondent was working from 1.11.1987, he was entitled to the benefit of G.O.(P)No.501/2005/Fin. dated 25.11.2005 and is thus entitled to OP(KAT)No.230/2019 9 the pay and allowances applicable to Part-time sweepers. The Tribunal hence held that the respondent was entitled to the revised pay of Rs.2300/- plus DA with effect from 19.6.2007. Further it was held that in the light of the judgments Exts.P2 and P3, the pay stands protected. The Tribunal hence directed the petitioners to release the arrears of pay and allowances to the respondent within three months from the date of receipt of a copy of the order. The petitioners have challenged the above direction in this original petition, contending mainly that G.O.(P)No.200/09 dated 7.11.2009 does not provide for payment of enhanced wages. The said contention has no legal basis. The pay protection was granted by the order dated 25.11.2005 in paragraph 11 and the said protection still remains. The protection is further strengthened by the _inter parte_ judgments Exts.P2 and P3. The order dated 7.11.2009 is only an order issued in compliance with the directions issued by this Court and the basic right does not flow from the said order. 8. We do not find any reason to interfere with the well considered order issued by the Tribunal. 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 OP(KAT)No.230/2019 10 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 28.9.2018 in T.A.No.4758 of 2012. With the above modification of the order of the Tribunal, the original petition is dismissed. The parties will suffer their respective costs. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn OP(KAT)No.230/2019 11 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **ANNEXURE A1: TRUE COPY OF TA 4758/12 ALONG WITH EXHIBITS.** **EXHIBIT P1 TRUE COPY OF THE SWEEPING AREA CERTIFICATE DATED 30.09.2003.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 14.10.2003 IN WP(C)NO.32170/2003.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 16.03.2009 IN WP(C)NO.37686/2008.** **EXHIBIT P4 TRUE COPY OF GO(MS)NO.200/09 DATED 07.11.2009.** **EXHIBIT P5 TRUE COPY OF GO(P)NO.262/2007(59)DATED 19.06.2007.** - **ANNEXURE A2: TRUE COPY OF COUNTER AFFIDAVIT ALONG WITH R2(A) FILED ON 21.3.2013 ON BEHALF OF THE 2ND RESPONDENT BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** **EXHIBIT R2(A): TRUE COPY OF GO(MS)No.180/2012/AD DT.25.7.2012.** **ANNEXURE A3: TRUE COPY OF ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DT.28.9.2018.**