State of Kerala and others v. Mary Jithesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** **OP(KAT).No.136 OF 2019** **AGAINST THE ORDER IN TA 5839/2012 DATED 27-07-2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.695 001** - **2 THE DIRECTOR OF HOMOEOPATHY, DIRECTORATE OF HOMOEOPATHY, THIRUVANANTHAPURAM 695 001.** - **3 THE DISTRICT MEDICAL OFFICER, HOMOEO, JALOOR, ERNAKULAM 682 017.** - **4 THE HOMOEO MEDICAL OFFICER,GOVERNMENT HOMOEO DISPENSARY, KARUMALLOOR, U.C. COLLEGE P.O., ALUVA, ERNAKULAM DISTRICT, 683 101.** **BY SR.GP SRI.ANTONY MUKKATH** ## **RESPONDENT/S:** **MARY JITHESH, W/O. JITHESH, RESIDING AT VATTAPPILLY, VAYALAKKAD UC. COLLEGE P.O., ALUVA 2, ERNAKULAM DISTRICT. 683 101.** **R1 BY ADV. SRI.M.V.THAMBAN R1 BY ADV. SRI.R.REJI R1 BY ADV. SMT.THARA THAMBAN R1 BY ADV. SRI.B.BIPIN R1 BY ADV. SRI.ARUN BOSE** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 21.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) No.136/2019 2 ## **JUDGMENT** Dated this the 21[st] day of November, 2019 ## **V.G.ARUN, J.** The State of Kerala and its officials have filed this original petition, aggrieved by the direction of the Kerala Administrative Tribunal to re-engage the respondent herein/ the applicant before the Tribunal, as Part-time Sweeper and to regularise her service in terms of G.O.(P) No.501/2005/Fin. dated 25.11.2005. The brief facts, as narrated in the transferred application, originally filed as W.P.(C) No.10085 of 2011, are as follows:- The applicant was engaged as Part-time Sweeper at the Government Homeo Dispensary, Karumaloor, Ernakulam with effect from 12.10.2002. She was thus engaged, when the regular Part-time Sweeper was transferred. Pursuant to the O.P.(KAT) No.136/2019 3 judgment of this Court in Mercy v. State (2004 (2) KLT, 848), the Government had issued Ext.P2 Government order (G.O.(P) No.501/2005/Fin. Dated 25.11.2005), providing for regularisation of the Part-time Sweepers in various Government offices, in accordance with the guidelines prescribed in the order. Later the Government issued Ext.P3 Government order (G.O.(P) No.61/2010/Fin. dated 09.02.2010), wherein it was specified that, Sweepers engaged against existing sanctioned post, shall be entitled to regularisation, provided the date of appointment was on or before 25.11.2005. In spite of her entitlement, instead of regularising the applicant, the 4[th] respondent attempted to engage Part-time Sweepers from the local Kudumbasree unit. In the meanwhile, the applicant became pregnant and submitted Ext.P6 dated 21.2.2010 requesting for maternity leave and to re-engage her after the leave period. O.P.(KAT) No.136/2019 4 Apprehending that the respondents may engage another Parttime Sweeper during her absence and refuse to re-engage her when she reports back for duty, the writ petition was filed seeking the following reliefs:- _“(i) to issue a declaration that the petitioner is entitled to regularisation of service as Part-time Sweeper at the dispensary under the 4[th] respondent with regular scale of pay with arrears from the date of original engagement w.e.f 12.10.2002 on the basis of the Exts.P2 and P3 Government orders and further respondents 2 to 4 are bound to forward a proposal for regularisation of service of the petitioner as Part-time Sweeper at the dispensary of the 4[th] respondent in accordance with Ext.P2 Government order. Also to declare that the petitioner is entitled to regular scale of pay restored on the basis of para 11 of Ext.P2 GO with arrears._ _ii) to issue a writ of mandamus or other writ or order directing the respondents to regularise service as Part-time Sweeper at the dispensary of the 4[th] respondent with regular scale of pay with arrears from the date of original engagement w.e.f 12.10.2002 on the basis of the Ext.P2 and P3 Government orders and to pay salary in the scale of pay applicable to Part-time Sweepers with arrears of salary from the date of her original engagement 12.10.2002 with 12% interest.”_ 2. The official respondents/petitioners herein, opposed the prayer contending that the applicant was not the only person engaged as casual sweeper at the Government O.P.(KAT) No.136/2019 5 Dispensary, Karumaloor and that the applicant, along with other persons were engaged alternatively. The names of such other persons were furnished, some of whom are admittedly the immediate relatives of the applicant. It was admitted that the sweeping area of the dispensary was earlier measured and determined as 132 Sq. Mtrs., but the area got reduced to 49.94 Sq. Mtrs. on subsequent measurement in accordance with the guidelines in Ext.P2 order. As such, there was no scope for regularisation of the applicant, the sweeping area below 100 Sq. Mtrs. and hence the attempt to engage Parttime Sweepers through the local Kudumbasree unit. It is also contended that there was no provision for granting maternity leave to Part-time contingent employees and therefore, the request for leave was rightly rejected and another person engaged. 3. The Tribunal, after consideration of the rival O.P.(KAT) No.136/2019 6 contentions, found that there was no dispute to the fact that the applicant had been working from 12.10.2002 onwards and that the averment of the applicant regarding the existence of a sanctioned post was not disputed in the reply statement. It was found that though, names of other persons alleged to have been engaged as Part-time Sweepers are also shown in the relevant register, some of the names are that of the mother, sister and other relatives of the applicant. The Tribunal took note of the fact that the practice of showing the names of different persons, while only one person is in fact engaged, for the purpose of making the service of the person engaged continuously appear to be intermittent, was prevalent in some offices. Relying on the decision in _**Mini v. LIC [2018 (1) KLT 530]**_ , the Tribunal held that, denial of maternity leave to the applicant, on the ground that she was a Part-time contingent employee, was illegal. Based on the findings, the Tribunal O.P.(KAT) No.136/2019 7 came to the conclusion that the applicant was entitled to be regularised in service in terms of Ext.P2 order and that had such regularisation been effected in time, the dispute regarding her eligibility for maternity leave would not have arisen. Hence, the termination of the applicant was held to be unauthorised, arbitrary and illegal. Consequently, the applicant was directed to be re-engaged as Part-time Sweeper and her service regularised in terms of Ext.P2 order. 4. In this original petition, the challenge against the impugned order is on the very same grounds canvassed before the Tribunal. The main ground of challenge is based on Annexure R2(a) certificate dated 8.1.2006, wherein the sweeping area is shown to be 49.45 Sq. Mtrs. The learned Senior Government Pleader would contend that the question of sanction of the post of Part-time Sweeper or regularisation in a sanctioned post will arise only if the sweeping area is O.P.(KAT) No.136/2019 8 more than 100 Sq. Mtrs. Answer the contention, the learned counsel for the applicant submitted that the measurement shown in Annexure R2(a) was taken without following the procedure prescribed in the guidelines appended to Ext.P2 Government order. The guidelines specifies details regarding the areas to be included and those to be excluded while measuring the sweeping area. It is also stipulated that while assessing and certifying the sweeping area, the concerned engineer should prepare a rough sketch of the area indicating the correct measurements and calculations and make it available to the head of office in question. No such procedure is seen to have been followed while preparing Annexure R2(a). Further, the area having been measured and certified to be 132 Sq. Mtrs. in Ext.P11, the reason for the drastic reduction of area in Annexure R2(a) is also not stated. Moreover, the salary in terms of Ext.P2 G.O. was also paid to O.P.(KAT) No.136/2019 9 the applicant, though according to the respondents, it was due to a mistake. From the totality of the materials available, the Tribunal had come to the correct conclusion that there existed a sanctioned post of Part-time Sweeper, to which the applicant was appointed from 12.10.2002 onwards and that she had continuously worked till January, 2010, when she was compelled to enter on leave due to her pregnancy. The reason for denial of maternity leave to the applicant was not sustainable in view of the decision in _**Mini v. LIC [2018 (1)**_ . _**KLT 530]**_ The only other crucial question is as to whether the applicant was working as Part-time Sweeper as on 25.11.2005, the date on which Ext.P2 G.O was issued. The applicant asserts to this fact and there is no definite denial from the respondents. In such circumstances, it has to be taken that the applicant was in service as on 25.11.2005 and was entitled for regularisation in terms of Ext.P2. O.P.(KAT) No.136/2019 10 For the aforementioned reasons, the grounds of challenge raised are found to be unsustainable. It is made clear that the period during which the applicant was out of service will not be reckoned for any purpose, including continuity of service. The original petition is dismissed with the above modification to the impugned order. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/21.11x O.P.(KAT) No.136/2019 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 A TRUE COPY OF THE WPC NO.10085/2011 RENUMBERED AS T.A. NO.5839/2012 ALONG WITH EXHIBITS P1 TO P11 BEFORE THE HONOURABLE KERALA ADMINISTRATIVE TRIBUNAL. ANNEXURE A2 TRUE COPY OF THE IA IN WPC 10085/2011 FOR DIRECTION ALONG WITH EXHIBIT P12 TO P14 WITH AFFIDAVIT. ANNEXURE A3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE SECOND PETITIONER ON 04/07/2011 ALONG WITH EXHIBIT R2(1). ANNEXURE A4 TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 27/07/2018. EXHIBIT P1 TRUE COPY OF TRUE COPY OF THE SALARY VOUCHER FOR THE MONTH OF JULY 2005. EXHIBIT P1 A TRUE COPY OF THE VOUCHER FOR THE MONTH OF AUGUST 2005. EXHIBIT P2 TRUE COPY OF THE G.O. P NO. 501/2005/FIN DATED 9.2.2010. EXHIBIT P3 TRUE COPY OF THE G.O. P NO. 61/2010/FIN DATED 25.11.205. EXHIBIT P4 TRUE COPY OF THE LETTER NO. 64/2010/GHD** O.P.(KAT) No.136/2019 12 **KMLR DATED 31.12.2010.** **EXHIBIT P5 TRUE COPY OF THE CIRCULAR NO. 98/10/FIN DATED 19.11.2010.** **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION FILED BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 26.3.2009 IN WPC NO.8954/2010 P** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 10.3.2011 IN W A NO. 1896/2009.** **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 23.6.2010 IN WPC NO. 506/2010.** **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 22.12.2010 IN CC NO. 506/2010. EXHIBIT P11 TRUE COPY OF THE SWEEPING ARE CERTIFICATE DATED 28.6.1994.** - **EXHIBIT P12 TRUE COPY OF THE LETTER NO. 27/2011/GAD KMLR DATED 28.3.2011 OF THE 4TH RESPONDENT.** **EXHIBIT P13 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 23.3.2011.** **EXHIBIT P14 TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 1.6.2011 WITH AFFIDAVIT. EXHIBIT R2(1) TRUE COPY OF SEEPING CERTIFICATE ISSUED BY ASSISTANT ENGINEER, PWD NORTH PARAVOOR.**