State of Kerala and Others v. C. Narayanan, Casual Sweeper

OP(KAT)No.340/2018 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.340 OF 2018** **AGAINST THE ORDER DATED 16.3.2018 IN TA 2755/2012 OF KERALA** **ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** **PETITIONERS/RESPONDENTS IN TA:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM , KERALA 695001** - **2 THE TAHSILDAR HOSDURG, TALUK, KASARGOD DISTRICT, KERALA-671 121** - **3 THE VILLAGE OFFICER HOSDURG HOSDURG, KASARGOD DISTRICT, KERALA -671121.** - **4 THE DISTRICT COLLECTOR KASARGOD, KERALA-671121** - **5 THE REVENUE DIVISIONAL OFFICER KANHANGAD, KASARGOD, KERALA-671315** - **BY SR. GOVERNMENT PLEADER SRI B.VINOD** - **RESPONDENT/APPLICANT IN TA:** **C.NARAYANAN CASUAL SWEEPER, VILLAGE OFFICE, HOSDURG, KASARAGOD DISTRICT ,KERALA 671121** **R1 BY ADV. SRI.M.SASINDRAN** **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.340/2018 2 ## **ALEXANDER THOMAS & T.R. RAVI, JJ. -----------------------------------------------O.P.(KAT) No.340 of 2018** [ _Arising out of order dated 16.03.2018 in T.A.No. 2755 of 2012 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 16.3.2018 in O.A.No.2755 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 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 connected cases** ), the State Government had issued GO(P) No.501/2005/Fin. dated 25.11.2005, OP(KAT)No.340/2018 3 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. 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 before the issuance of the Government order dated 25.11.2005. 4. In the case on hand, the respondent was engaged as casual sweeper in Village Office, Padne, with effect from 6.11.2001 and was OP(KAT)No.340/2018 4 thereafter transferred and posted to Village Office Hosdurg, by Exhibit P1 order dated 28.2.2005, with effect from 1.3.2005. The Village Office, Hosdurg was initially functioning in a rented building and was shifted to its own building in June, 2009 and on shifting, the sweeping area increased to more than 100 M[2 ] . In the above circumstances, regularisation was sought for as provided in G O. P. No. 501 of 2005. The petitioners contended that the post of part-time sweeper was created in Village Office, Hosdurg, with effect from 16.7.2010, and that the applicant who was not in service on 25.11.2005 in Hosdurg was not eligible for regularisation in a post that was created after 25.11.2005 and that the appointment has to be through the Employment Exchange. The Tribunal rejected the plea that the applicant was not working as part-time sweeper on 25.11.2005, since it was admitted that she was appointed as casual sweeper in Village Office, Hosdurg with effect from 1.3.2005, and there was no material forthcoming to show that this engagement was later terminated before 24.11.2005. Even though it was found that the office had shifted to the new premises with effect from 9.6.2009, regularisation was directed with effect from the date on which the regular post was created with effect from 26.7.2010. Exhibit P3 letter dated 22.12.2009 will show that the new office has 111.63 M² sweeping area. 5. Heard Sri B.Vinod, learned Senior Government Pleader on behalf of the petitioners and Sri M.Sasindran on behalf of the respondent. The main ground on which the order of the Tribunal is impugned is that OP(KAT)No.340/2018 5 there can be no regularisation to a post which is created due to increase in sweeping area to more than 100 M[2 ] , after 25.11.2005. It is also contended that the respondent was not in service in Hosdurg on 25.11.2005. The contentions put forward on behalf of the petitioners can no longer be countenanced. On going through the evidence on record and the findings recorded by the Tribunal, we are convinced that the respondent had been engaged with effect from 6.11.2001 and that she was shifted to the Village Office, Hosdurg, with effect from 28.2.2005, well before the Government order GO(P)No.501/2005/Fin. dated 25.11.2005 came into force. As such, it cannot be contended that the respondent was not in service on the relevant date. The only other question that remains to be considered is whether there can be regularisation if the sweeping area exceeds 100M[2 ] after 25.11.2005. This Court has considered similar issues in several cases and has held that existing casual sweepers who were sweeping area less than 100 M[2] before issuance of G.O.(P) No.501/2005/Fin. dated 25.11.2005 and such sweeping area later exceeded 100 M[2] , were entitled to be regularised with effect from the date on which the sweeping area exceeded 100 M[2 ] . 6. In the judgment dated 18.01.2019 in O.P.(KAT) No.26 of 2019, a Division Bench of this Court held in paragraph 6 as follows:- _“6. ….. …. Therefore, essential question is whether, solely because the sweeping area was below 100 sq.m till 2014, the respondent could hold it out to be a reason to deprive the benefit flowing from the said G.O. dated 25.11.2005, to the petitioner. When the admitted position is that subsequent to the renovation_ OP(KAT)No.340/2018 6 _of the office in question there occurred an increase in the sweeping area and thereby it became 124.164 sq.m, cannot be ignored while considering that question. The Tribunal after considering the rival contentions had arrived at the conclusion that it could not be assigned as a reason for not granting the benefit to the petitioner. Evidently, it was based on such consideration that the Tribunal found the respondent eligible for regularisation in terms of the said G.O dated 25.11.2005 and also the benefit of the subsequent G.O(P)No.61 of 2010 dated 9.2.2010. It is an interpretation beneficial to the employee and it cannot be taken as a perverse or absurd interpretation considering the object behind issuance of the aforesaid Government Orders. We do not find any reason to hold that the Tribunal had erred in arriving such a conclusion. We also got no hesitation to hold that the said conclusion nothing but the culmination of the rightful consideration. ….. ….”_ 7. We are in complete and respectful agreement with the reasoning adopted by the Division Bench in the above said decision. Admittedly, the office had shifted to the new premises with effect from 9.6.2009 and as per Ext.P3 letter dated 22.12.2009, the sweeping area of the new premises was certified as 111.63 M[2] . Even though the respondent was entitled to be considered for regularisation with effect from the said date, the Tribunal was pleased to direct regularisation with effect from the date on which the regular post was created with effect from 26.7.2010. In the above circumstances, we do not find any reason to upset the finding rendered by the Tribunal that the respondent is entitled to regularisation as directed by the Tribunal. The time granted by the Tribunal to comply with its directions is long over. We hence grant the petitioners a further time of six weeks from the date of receipt of a copy of this judgment, to comply with the directions contained in the order dated 16.3.2018 of the Tribunal in T.A.No.2755 of OP(KAT)No.340/2018 7 2012. The order of the Tribunal stands modified to that extent. The original petition is dismissed subject to the above modification. The parties will bear their respective costs. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn OP(KAT)No.340/2018 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1: TRUE COPY OF TA NO.2755/2012 ALONG WITH EXHIBITS P1 TO P5 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL** - **EXHIBIT P1 TRUE COPY OF ORDER DATED 28.2.2005 ISSUED BY THE TAHSILDAR HOSDURG TRANSFERRING THE PETITIONER FORM VILLAGE OFFICE PADNE TO VILLAGE OFFICE HOSDURG.** - **EXHIBIT P2 TRUE COPY OF G.O.DATED 25.11.2005 ISSUED BY THE GOVERNMENT** - **EXHIBIT P3 TRUE COPY OF THE FORWARDING LETTER OF THE TAHSILDAR** - **EXHIBIT P4 TRUE COPY OF THE APPLICATION LONG WITH THE SWEEPING AREA CERTIFICATE.** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 26.7.2010 ISSUED BY THE GOVERNMENT REJECTING THE APPLICATION FOR REGULARIZATION OF THE PETITIONER AS PART TIME SWEEPER.** - **ANNEXURE A2: TRUE COPY OF COUNTER AFFIDAVIT DT.3.1.2012 FILED BY THE FIRST RESPONDENT IN THE AFORESAID TRANSFER APPLICATION.** - **ANNEXURE A3: TRUE COPY OF ORDER DT.16.3.2018 IN T.A.2755/12 OF THE KERALA ADMINISTRATIVE TRIBUNAL.**