State of Kerala and others v. O. Geethakumari (OP(KAT) No.234 of 2020)

O.P.(KAT) No.234 of 2020 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.234 OF 2020** **AGAINST THE ORDER DT.5.2.2020 IN OA 825/2018 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN OA:** **1 THE SECRETARY TO GOVERNMENT LAND REVENUE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001 2 THE LAND REVENUE COMMISSIONER, COMMISSIONERATE OF LAND REVENUE, PUBLIC OFFICE BUILDINGS, MUSEUM, THIRUVANANTHAPURAM PIN 695 033.** **BY SR. GOVERNMENT PLEADER SRI B. VINOD** **RESPONDENT/APPLICANT IN OA:** **O.GEETHAKUMARI AGED 54 YEARS W/O. LATE SRI KRISHNANKUTTY NAIR, RESIDING AT GEETHANJALI, PUTHIYARAMOOLA, CHANTHAVILA, KATTAYIKKONAM P.O, THIRUVANANTHAPURAM 695 584 WORKING AS PART TIME SWEEPER, MEL THONNAKKAL VILLAGE OFFICE, THIRUVANANTHAPURAM PIN 695 317** **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.234 of 2020 2 ## **ALEXANDER THOMAS & T.R. RAVI, JJ. -----------------------------------------------O.P.(KAT) No.234 of 2020** [ _Arising out of order dated 05.02.2020 in O.A.No. 825/2018 of KAT, Tvm. Bench_ ] **-------------------------------------------------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 05.02.2020 in O.A.No.825 of 2018 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram Bench (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 and others v. M.M.Mercy and others (W.A.No.1863 of 2004** O.P.(KAT) No.234 of 2020 3 **and 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. 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, O.P.(KAT) No.234 of 2020 4 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. As per paragraph 3(iv) of G.O. (P)No.61/2010/Fin dated 09.02.2010, where sweepers were engaged against existing sanctioned posts for any reason, they shall also be entitled to regularisation, provided the date of appointment was on or before 25.11.2005 and on the retirement of the existing sweeper in such offices, the vacancy is to be filled up through Employment Exchange only. 4. The respondent in this original petition was admittedly engaged as casual sweeper at the Village Office, Melthonnackal since 22.09.2001. Annexure A1 letter from the Project Manager, Nirmithi Kendra to the Tahsildar, Thiruvananthapuram will show that the construction of the Melthonnackal Village Office was completed on 18.2.2010 and that the completion certificate was submitted on 22.9.2011. By Annexure A2 letter from the Assistant Engineer to the Tahsildar, Thiruvananthapuram, it is informed that as per the records kept at their office, the sweeping area exceeded 100 M[2] with effect from 31.7.2013 while as per the letter of the Village Officer, Melthonnackal, O.P.(KAT) No.234 of 2020 5 the area exceeded 100 M[2] with effect from 04.05.2011. As per Annexure A3 GO(Rt) No. 5331/2017/Revenue dated 13.12.2017, the 1[st] respondent sanctioned a post of part-time sweeper with effect from 13.12.2017 and regularised the service of the petitioner in that post. Annexure A3 categorically states that the Village Office was functioning in the said premises for the past 80 years and that the respondent was being engaged continuously from 22.09.2001. The original application was filed by the applicant alleging that the claim for regularisation with effect from 18.2.2010 on which date the sweeping area exceeded 100 M[2] was not considered. The petitioners filed reply statement, contending that having regard to G.O.(P)No.58/2018/Fin. dated 10.4.2018, the respondent was not entitled to claim regularisation with effect from the date on which the sweeping area exceeded 100 sq.mts. It was also contended that the sweeping area exceeded 100 M[2] only with effect from 31.07.2013. Admittedly, the respondent was being paid the pay and allowances as that of regular part-tme sweeper on the basis of 1997 pay revision order, with effect from 22.09.2001. The Tribunal found that the petitioner was being engaged from 2001 onwards and that the subsequent Government order dated 10.04.2018, which restricted the regularisation of part-time sweepers will not be O.P.(KAT) No.234 of 2020 6 applicable and the petitioner will be entitled to regularisation with effect from the date on which the sweeping area 100 M[2 ] . The Tribunal also found that even if the measurements had been taken on 18.02.2010, the measurement would have been more than 100 M[2 ] . On the above reasoning the Tribunal held that the petitioner was entitled to regularisation with effect from 18.02.2010. 5. The main ground which has been put forth in the original petition is that neither the Government order GO(P)No.501/2005/Fin. dated 25.11.2005 nor the subsequent order G.O.(P)No.61/2010/Fin. dated 09.2.2010 postulate that existing sweepers continuing in offices with less than 100 M[2] of sweeping area will be entitled to get regularisation in service as and when the sweeping area increases beyond 100 M[2] . This Court has considered similar issues in several cases and has held that in cases of existing casual sweepers who were sweeping area less than 100 M[2] and where the sweeping area increased subsequent to the issuance of G.O.(P) No.501/2005/Fin. dated 25.11.2005, they 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:- O.P.(KAT) No.234 of 2020 7 _“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 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. The only question that remains is the day on which the sweeping area exceeded 100 M[2] . Going by the evidence on record, the office has been functioning in the same building for the past 80 years and the additional constructions had been completed on 18.2.2010. 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 with effect from 18.02.2010, on which day the sweeping area exceeded 100 M[2] . The time granted by the Tribunal to comply with its directions is long over. We hence grant the petitioners a O.P.(KAT) No.234 of 2020 8 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 05.02.2020 of the Tribunal in O.A.No.825 of 2018. 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 O.P.(KAT) No.234 of 2020 9 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE O.A NO. 825/2018 ALONG WITH ANNEXURES** - **ANNEXURE A1 TRUE COPY OF THE LETTER NO. 722/10/NK/TVM DATED 30-11-2016 WRITTEN BY THE PROJECT MANAGER, NIRMITHI KENDRAM, CIVIL STATION, THIRUVANANTHAPURAM TO THE TAHSILDAR, TALUK OFFICE, THIRUVANANTHAPURAM.** - **ANNEXURE A2 TRUE COPY OF THE LETTER NO. VS/D1/10/2016 DATED 26-10-2016 ISSUED BY THE PWD ASSISTANT ENGINEER TO THE TAHASILDAR, THIRUVANANTHAPURAM** - **ANNEXURE A3 TRUE COPY OF G.O(RT) NO. 5331/2017/REV DATED 13-12-2017 PASSED BY THE FIRST RESPONDENT** - **ANNEXURE A4 TRUE COPY OF THE G.O(P) NO. 501/2005/FIN DATED 25-11-2005 PASSED BY THE FIRST RESPONDENT.** - **ANNEXURE A5 TRUE COPY OF THE LETTER NO. VS D1/8/2015 DATED 01-10-2015 BY WHICH THE ASSISTANT ENGINEER, PWD INTIMATED THE VILLAGE OFFICER, MEL THONNAKKAL VILLAGE OFFICE WITH MEASUREMENTS** - **ANNEXURE A6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT BEFORE THE GOVERNMENT ON 18-01-2018.** - **ANNEXURE A7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT BEFORE THE GOVERNMENT ON 28-05-2018** - **ANNEXURE A8 TRUE COPY OF THE COURIER RECEIPT FROM PROFESSIONAL COURIER WITH RESPECT TO EXHIBIT P1(A7)** O.P.(KAT) No.234 of 2020 10 |**EXHIBIT P2**|**TRUE COPY OF THE REPLY STATEMENT FILED**| |---|---| ||**BY THE 2ND PETITIONER ON 21-06-2019**| ||**BEFORE THE KERALA ADMINISTRATIVE**| ||**TRIBUNA;L**| |**EXHIBIT P3**|**TRUE COPY OF THE REPLY STATEMENT FILED**| ||**BY THE FIRST PETITIONER ON 22-07-2019**| |**EXHIBIT P4**|**TRUE COPY OF THE REJOINDER FILED BY THE**| ||**RESPONDENT ON 19-12-2019 TO THE REPLY**| ||**STATEMENT OF THE FIRST PETITIONER**| |**EXHIBIT P5**|**TRUE COPY OF THE REJOINDER FILED BY THE**| ||**RESPONDENT ON 19-12-2019 TO THE REPLY**| ||**STATEMENT OF THE SECOND PETITIONER.**| |**EXHIBIT P6**|**TRUE COPY OF THE ORDER OF THE**| ||**ADMINISTRATIVE TRIBUNAL ON 05-02-2020 IN**| ||**O.A NO. 825/2018**| |**EXHIBIT P7**|**TRUE COPY OF THE G.O(P) NO. 58/2018/FIN**| ||**DATED 10-04-2015.**|