State of Kerala and others v. P. Gopalakrishnan Pillai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** ## **OP(KAT).No.275 OF 2019** **AGAINST THE ORDER IN TA 5193/2012 DATED 24-01-2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001** - **2 THE LAND REVENUE COMMISSIONER, COMMISSIONERATE OF LAND REVENUE, THIRUVANANTHAPURAM.** - **3 THE DISTRICT COLLECTOR COLLECTORATE, KOLLAM** - **4 THE TAHASILDAR , TALUK OFFICE, KARUNAGAPPALLY TALUK, KOLLAM.** - **5 THE VILLAGE OFFICER, THEKKUMBHAGAM VILLAGE OFFICE, CHAVARA P.O, KOLLAM.** - **6 THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER** O.P.(KAT) No.275 of 2019 2 ## **RESPONDENT/S:** **P.GOPALAKRISHNA PILLAI S/O. PADMANABHAN PILLAI, PART TIME SWEEPER, THEEKKUMBHAGAM VILLAGE OFFICE, KARUNAGAPPALLY TALUK, KOLLAM.** **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** ## **OTHER PRESENT:** **SRI.ANTONY MUKKATH, SR.GP FOR PETITIONER.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 26.11.2019, THE COURT ON THE SAME DAY** **DELIVERED THE FOLLOWING:** O.P.(KAT) No.275 of 2019 3 ## **JUDGMENT** Dated this the 26[th] day of November, 2019 ## **V.G.ARUN, J.** The original petition is filed by the State of Kerala and its officials, aggrieved by the direction of the Kerala Administrative Tribunal to sanction a post of Part-time sweeper at the Village Office, Thekkumbhagam and to regularise the service of the respondent/original applicant, in the said post with effect from 29.9.2001. The averments in the original application, in brief, are as follows:- As per Ext.TA1 proceedings of the Tahasildar, Karungappally dated 29.9.2001, the applicant was appointed as Part-time Sweeper at the Village Office, Thekkumbhagam with effect from 1.10.2001. Since the applicant was entitled for regular scale of pay in terms of G.O.(P) No.831/80/RD O.P.(KAT) No.275 of 2019 4 dated 3.11.1980 and G.O.(MS) No.850/84/RD dated 30.8.1984, he approached this Court in O.P.No.2023 of 2003. The original petition was allowed as per Ext.TA3 judgment, declaring the applicant as eligible to get salary in the scale of pay applicable to Part-time Sweepers appointed on regular basis. The direction in the judgment was complied with and the applicant was paid the salary. 2. Later, by the judgment in Mercy v. State [2004 (2) KLT 848], this Court disposed of a batch of writ petitions, directing the Government to introduce a scheme for regularisation of Part-time Sweepers working continuously for long spells at various Government offices. Accordingly, the Government issued Ext.TA4 order (G.O.(P) No.501/2005/Fin dated 25.11.2005), providing for regularisation of the Parttime Sweepers in various Government offices having sweeping area of more than 100 Sq. Mtrs., in accordance with the O.P.(KAT) No.275 of 2019 5 guidelines appended to the order. On 9.2.2010, the Government issued Ext.TA6 order (G.O.(P) No.61/2010/Fin. dated 09.02.2010) specifying that sweepers engaged against existing sanctioned posts, shall be entitled for regularisation, provided the date of appointment was on or before 25.11.2005. In Ext.TA6, it was also specified that those Parttime Sweepers, who are in receipt of regular pay and allowances as applicable to regular Part-time Sweepers, by virtue of court orders or otherwise, will also be entitled for protection of pay as envisaged in Paragraph 11 of Ext.TA4 order, including the benefit of the subsequent revisions. 3. In accordance with the guidelines prescribed under Ext.TA4 order, the sweeping area of Thekkumbhagam Village Office was measured and certified to be 107.35 Sq.Mtrs. Based on the fact that the applicant was in service as on 25.11.2005 and the sweeping area of the Village Office was more than 100 O.P.(KAT) No.275 of 2019 6 Sq.Mtrs, he was entitled for the benefits under Ext.TA4 order. But, in spite of the revision of pay of the Government employees, brought into effect from 1.7.2004, the benefit was not extended to the applicant. Citing Exts.TA7 and TA8 interim orders passed by this Court in the case of similarly situated persons, the applicant filed W.P.(C) No.29923 of 2012, seeking the following reliefs:- _“(i) to issue a declaration that the petitioner is entitled to regularisation from the date of his original engagement with regular scale of pay with pay revision benefits from 1.7.2004._ _(ii) to issue a writ of certiorari or other writ calling for the records leading upto Ext.P6 and quash para 3(i)(ii) (iii) of the same as it goes against Division Bench Ruling in W.A.No.1863/2004 dated 12.8.2005._ _(iii) to issue a writ of mandamus or other writ or order directions to follows:-_ _a) to direct the respondents to regularise the petitioner as regular Part-time Sweeper prior to three years from the date of Exhibit P3 judgment._ _b) to pay the regular scale of pay with arrears of calculated from 1.7.2004 till date after adjusting the amounts already paid._ _c) to pay interest at the rate of 12% on the amount payable to the petitioner as above.”_ 4. The writ petition was subsequently transferred to the Kerala Administrative Tribunal and numbered as O.P.(KAT) No.275 of 2019 7 T.A.No.5193 of 2012. 5. In the counter affidavit filed before the Tribunal, the official respondents submitted that in terms of Ext.TA4 order, the Commissioner, Land Revenue had furnished the proposal for regularisation of the existing Part-time Sweeper at the Thekkumbhagam Village Office and the Government, after examining the proposal in consultation with the Finance Department, had rejected the request for regularisation as per letter No.24774/T1/10/RD dated 26.7.2010, finding the sweeping area of the Village Office to be less than 100 Sq.Mtrs. The sweeping area was re-assessed through the Chief Technical Officer, Finance Inspection Wing under the Finance Department and found to be only 98.46 Sq.Mtrs. It was submitted that in the light of the interim order in W.P.(C) No.29923 of 2010 dated 29.9.2010, the Tahasildar, Karunagappally had revised the pay of the applicant and the O.P.(KAT) No.275 of 2019 8 arrear amount was disbursed. It was hence submitted that the applicant had no right to get his service regularised as Parttime Sweeper at the Thekkumbhagam Village Office. 6. Along with his rejoinder, the applicant produced Annexure A11 reply, to his query made under the Right to Information Act, to contend that the re-assessment conducted on 17.6.2010 was not in accordance with the procedure prescribed in the guidelines. The applicant contended that the reason for reduction of sweeping area from 107.35 Sq.Mtrs to 98.46 Sq.Mtrs. was the deliberate omission to measure and include the floor area of the record room, by describing it as the store room. It was also contended that the requirement of giving notice and securing the presence of the applicant during re-assessment was flouted. 7. On consideration of the rival contentions, the Tribunal found that, being entitled to get his service O.P.(KAT) No.275 of 2019 9 regularised in terms of Ext.TA4 order, the subsequent verification and assessment based on Ext.TA6 cannot result in denial of the applicant's right. Based on the finding, the Tribunal directed the Government to sanction the post of Parttime Sweeper in the office of the fifth respondent in terms of Ext.TA4 order and in the light of Ext.TA5 certificate and to regularise the service of the applicant with effect from 29.9.2001, the date of engagement of the applicant as Parttime Sweeper. 8. The challenge against the order of the Tribunal is on the ground that Ext.TA6 order enjoins the Government to conduct re-assessment of the sweeping area wherever necessary by the Chief Technical Officer, who is the competent technical authority in the Finance Department. That, in the reassessment thus conducted, the sweeping area was found to be less than 100 Sq.Mtrs. Therefore, it was not possible to O.P.(KAT) No.275 of 2019 10 sanction the post of Part-time Sweeper at the Thekkumbhagam Village Office. 9. The short question that arises for consideration is as to whether the Government could have directed reassessment of the sweeping area in terms of Exts.TA4 and TA6 orders and if so, the re-assessment was conducted in accordance with the prescribed guidelines. In order to answer the question, we have to look at the relevant clauses in Exts.TA4 and TA6 orders. Clause (8) of Ext.TA4 stipulates that the sweeping area shall be calculated in accordance with the guidelines given in the appendix to the order. It is also stipulated that as far as regularisation of existing casual sweepers are concerned, the measurement will be made by the PWD officials after notice to the incumbent casual sweeper and in his presence. The incumbent casual sweeper will also sign in the prescribed format, either agreeing or disagreeing O.P.(KAT) No.275 of 2019 11 with the measurement. This exercise was to be completed in all cases by 15.12.2005. It was in terms of the directions as above that the sweeping area was calculated and Ext.TA5 certificate issued. 10. As per Ext.TA6 Government order dated 9.2.2010, the Government has the liberty to conduct re-assessment of the sweeping area of any office wherever necessary by the Chief Technical Officer, who is the competent technical authority of the Finance Department. It is specified that such re-assessment will be made strictly in terms of the appendix to Ext.TA4 Government order and with notice to the sweeper and others concerned. Therefore, it has to be conceded that the Government is conferred with authority to re-assess the sweeping area through its Chief Technical Officer. 11. Annexure R4(b) contains the certificate and sketch prepared by the Chief Technical Officer on re-assessment. The O.P.(KAT) No.275 of 2019 12 applicant has challenged Annexure R4(b) on the ground that the re-assessment and computation of sweeping area was done without following the procedure prescribed in the appendix to Ext.TA4 order. It is submitted that the original assessment of sweeping area was conducted by correctly including the record room of the office having carpet area of 13.72 Sq.Mtrs. as evidenced by Ext.TA5 certificate, whereas in the re-assessment, the record room is incorrectly described as the store room and the 13.72 Sq.Mtrs. excluded from the sweeping area. This had resulted in reduction of the sweeping area from 107.35 Sq.Mtrs to 93.11 Sq.Mtrs. 12. The manner in which sweeping area is to be measured is clearly stated in the guidelines for determination of sweeping area appended to Ext.TA4. As per the guidelines, the carpet area, ie, the usable floor area, excluding the area of terrace, car porch, staircases, lift walls, escalators, ducts, O.P.(KAT) No.275 of 2019 13 toilets, air conditioner plant room and electrical control room, are to be included in the sweeping area. The area of car porch, staircase, veranda and corridor which are under exclusive use of the office in question, can be included in the sweeping area, provided it is used regularly by the office staff and/or the general public and is swept regularly. If there is a courtyard attached to the office, then the area of the courtyard actually swept, subject to the condition that the area shall not exceed 1/3[rd] of the aggregate of the total of the other areas, can also be included in the sweeping area. From the provisions, it is clear that there is no exclusion of either the record room or the store room, provided the room is swept regularly. A perusal of Annexure R4(b) shows that the Chief Technical Officer has excluded the record room (store room) terming it as 'unsweptable area _' (sic)._ The sweeping area having been measured and calculated in violation of the guidelines, the O.P.(KAT) No.275 of 2019 14 same is liable to be rejected. 13. The applicant had raised a specific contention that at the time of re-assessment, he was not given notice or his presence secured, as mandated in the guidelines. The relevant portion of the guidelines at Clause (8) of Ext.TA4 reads as under:- _“As far as regularisation of existing casual sweepers are concerned, the measurement will be made by the PWD official after notice to the incumbent casual sweeper and in his presence. The incumbent casual sweeper will also sign in the format at Annexure either agreeing with the measurement or disagreeing with it. This exercise will be completed in all cases by 15.12.2005.”_ Clause 3 (iii) of Ext.TA6 also mandates that the re-assessment shall be done with notice to the sweeper and others concerned. In Ext.TA11 reply, it is stated that the presence of the applicant at the time of checking was not mandatory and only the officials of the Village Office were present during the inspection. Hence, it is clear that the requirement of issuing O.P.(KAT) No.275 of 2019 15 notice to the Part-time Sweeper and securing his/her presence and procuring his/her sign in the prescribed format was not complied with. As such, though no probative value can be attached to Annexure R4(b) certificate; even going by the said certificate issued on re-assessment the area is above 100 Sq. Mtrs. The lesser dimension shown is only by reason of excluding a room, which was not liable to be excluded. If the admitted dimension of that room is included the area is in accordance with that stipulated in Ext.TA4 order. In such circumstances, the direction issued by the Tribunal to regularise the service of the applicant in terms of Ext.TA4 order and on the strength of Ext.TA5 certificate, is liable to be affirmed. No doubt, on such regularisation, the applicant is entitled to be paid the entire arrears due to him with effect from 1.10.2001, since the effective date as per Ext.TA4 is 18.6.2001 or if later appointed from the date of O.P.(KAT) No.275 of 2019 16 appointment; including the arrears, if any due, consequent upon implementation of the pay revision orders. In the result, the original petition is dismissed. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** Scl/26.11 O.P.(KAT) No.275 of 2019 17 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1(TA) TRUE COPY OF T.A. NO. 5193/2012 ALONG WITH EXHIBITS P1 TO P9 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL EXHIBIT P1(TA1) TRUE COPY OF ORDER NO. A3/11190/2001/K.DIS DATED 29.09.2001. EXHIBIT P1(TA2) TRUE COPY OF THE G.O(P) NO.831/80/RD DATED 3.11.1980. EXHIBIT P1(TA3) TRUE COPY OF THE JUDGMENT DATED 03.02.2003 IN WP(C) NO. 2023/2003. EXHIBIT P1(TA4) TRUE COPY OF THE G.O(P) NO. 501/2005/FIN. DATED 25.11.2005. EXHIBIT P1(TA5) TRUE COPY OF THE SWEEPING AREA CERTIFICATE OF THEEKKUMBHAGOM VILLAGE OFFICE. EXHIBIT P1(A6) TRUE COPY OF THE G.O(P) NO. 61/2010/FIN. DATED 09.02.2010. EXHIBIT P1(TA7) TRUE COPY OF THE INTERIM ORDER DATED 23.12.2009 IN W.P(C) NO. 37537/2009. EXHIBIT P1(TA8) TRUE COPY OF INTERIM ORDER DATED 07.08.2009 IN W.P(C) NO. 20686/2009. EXHIBIT P1 (TA9) TRUE COPY OF THE INTERIM ORDER DATED 14.09.2010 IN W.P.(C) NO. 28276/2010. EXHIBIT P2(TA) TRUE COPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF THE FIRST PETITIONER DATED 10.08.2011.** O.P.(KAT) No.275 of 2019 18 **EXHIBIT P3(TA) TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 4TH PETITIONER DATED 26.03.2014 ALONG WITH EXHIBITS. EXHIBIT P3(TA) TRUE COPY OF GOVERNMENT LETTER NO. R4(A) 24774/TI/10 RD DATED 26.07.2010. EXHIBIT P3(TA) TRUE COPY OF THE LETTER NO. E1/12/2005 R4(B) DATED 02.02.2013. EXHIBIT P4(TA) TRUE COPY OF THE REJOINDER ALONG WITH EXHIBITS. EXHIBIT P4(TA10) TRUE COPY OF THE SWEEPING AREA CERTIFICATE. EXHBIT P4(TA11) TRUE COPY OF THE LETTER NO. 76768/INFOR.1/2010/FIN DATED 29.10.2010. EXHIBIT P5 (TA) TRUE COPY OF THE FINAL ORDER DATED 24.01.2018 BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL IN THE TRANSFERRED APPLICATION.**