State of Kerala and Others v. Sirajnisa S.

_**OP(KAT).369/19**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941** ## **OP(KAT).No.369 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OA 2007/2012 DATED 15-12-2017 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT,HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR OF HOMEOPATHY, THE DIRECTORATE OF HOMEO, THIRUVANANTHAPURAM, KERALA-695001. 3 THE DISTRICT MEDICAL OFFICER (HOMEO), PALAKKAD,KERALA -678001. 4 THE CHIEF MEDICAL OFFICER, GOVERNMENT HOMEO DISPENSARY, KIZHAKKANCHERRY P.O., PALAKKAD, KERALA-678864.** ## **BY GOVERNMENT PLEADER** ## **RESPONDENT/S:** **SIRAJNISA S., W/O.SHAHUL HAMEED M, PART TIME SWEEPER, GOVERNMENT HOMEO DISPENSARY, KIZHAKKANCHERRY, ALATHUR TALUK, PALAKKAD DISTRICT-678684, RESIDING AT VADAKKETHARA HOUSE, NINAMKADU, KIZHAKKANCHERRY P.O., ALATHUR TALUK, PALAKKAD, KERALA-678684.** **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** 2 _**OP(KAT).369/19**_ **R1 BY ADV. SRI.ARUN BOSE R1 BY ADV. SMT.RENI JAMES R1 BY ADV. SMT.DEEPA SREENIVASAN** ## **OTHER PRESENT:** ## **SR.GP SRI.ANTONY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 27.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**OP(KAT).369/19**_ 3 ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** ## **----------------------------------------------O.P(KAT).No.369 of 2019 ----------------------------------------------Dated this the 27[th] day of January, 2020** ## **JUDGMENT** ## _**Arun, J.**_ The State of Kerala and its officers are aggrieved by Exhibit P3 order of the Kerala Administrative Tribunal in O.A.No.2007 of 2012 directing regularisation of the service of the 1[st] respondent as part-time sweeper at the Government Homoeo Dispensary, Kizhakkancherry with effect from 18.6.2001, setting aside the decision to reduce the pay of the 1[st] respondent with effect from 4.11.2008 onwards and consequently directing the arrears of pay to be computed and paid within one month. 2. In her original application before the Tribunal, the 1[st] respondent had made the following averments and contentions; the parties and the exhibits being referred as described in the original application; The applicant was appointed as part-time sweeper at the Government Homoeo Dispensary, Kizhakkancherry with effect from 28.1.1998 when the dispensary started functioning and has _**OP(KAT).369/19**_ 4 been continuing as such without break. Initially the applicant was paid salary at the rate of Rs.100/- per month, which was later enhanced to Rs.600/- and thereafter to the regular scale of Rs.1250+DA, on the strength of Annexure A1 G.O(P).No.501/2005/Fin. dated 25.11.2005. The Homoeo Dispensary, which was earlier functioning in a rented building, was shifted to a building owned by the Government on 1.4.2004. Thereafter, the sweeping area of the new office was measured and found to be 63 sq.mtrs., upon which the salary of the applicant was reduced. Even though the applicant sought regularization as part-time sweeper and payment of salary in accordance with Annexure A1 order, the request was rejected and hence the original application. 3. It was contended on behalf of the applicant that she had been appointed to a sanctioned post of part-time sweeper at the Homoeo Dispensary and that, in accordance with the stipulations in Annexure A1 Government order, her service was liable to be regularised and there could not have been any reduction in her salary on the basis of an alleged measurement and finding that the sweeping area was less than 100 sq. mtrs. Reliance was placed on paragraph 11 of Annexure A1 Government order, the relevant portion of which reads as under: _**OP(KAT).369/19**_ 5 _“11. The guidelines at Appendix shall also be applied to offices which already have part-time contingent sweepers. ***********************************************************_ _If, on fixation, the sweeping area reduces from above 100 sq.mtrs. to below 100 sq.mtrs the remuneration of the existing part-time sweeper, if he is getting Rs.1250 p.m. plus DA, shall not be reduced. He shall continue to get what he was getting. Here also, the next vacancy in the post should be filled up by a casual sweeper only, by paying Rs.600 per month.”_ 4. The official respondents opposed the prayer for regularisation and contended that the applicant is not entitled to get the benefit of protection envisaged in paragraph 11 of Annexure A1, since on measurement, the sweeping area was found to be less than 100 sq.mtrs. 5. The Tribunal found that the applicant had been working as part-time sweeper in a sanctioned post from 26.1.1996 onwards and was therefore entitled for regularisation against that post with effect from 18.6.2001, as stipulated in paragraph 8 of Annexure A1 G.O. It was found that as on 18.6.2001, the dispensary was functioning with a regular post of part-time sweeper and the respondents did not have a case that the sanctioned post of regular part-time sweeper stood abolished on shifting of the dispensary to the new building. It was held that the applicant being engaged against a regular sanctioned post of parttime sweeper was rightly granted the scale of pay attached to the _**OP(KAT).369/19**_ 6 post. Based on the findings, the original application was allowed and consequential orders issued. 6. In this original petition the petitioners reiterate the same contentions as were urged in the original application. The fact that the applicant was engaged as a part-time sweeper from 28.1.1998 onwards and that a regular post of part-time sweeper was available at the dispensary is not in dispute. Annexure A1 order was issued by the Government in terms of the decision of this Court in _**Mercy v. State of Kerala**_ [2004 (2) KLT 848], wherein direction was issued to the Government to issue guidelines for regularising the services of those casual/daily wage sweepers who were engaged for long periods continuously without regularisation and without regular remuneration. Annexure A1, issued in terms of the directions in _**Mercy,**_ envisages regularisation of casual sweepers engaged in Government offices as on the date of issuance of the order. Annexure A1 prescribed modalities for measuring the sweeping area of the office for the purpose of sanctioning the post of part-time sweeper and regularisation of the existing incumbent. 7. Insofar as the applicant is concerned, a regular post of part-time sweeper was in existence as on the date of publication of Annexure A1 and in that context, even if the sweeping area was found to be less than 100 sq.mtrs., there cannot be any reduction _**OP(KAT).369/19**_ 7 in her remuneration, as is evident from a reading of paragraph 11 of Annexure A1. As rightly found by the Tribunal, paragraph 8 provides for creation of the post of part-time sweeper with effect from 18.6.2001, if the other requirements are satisfied. The petitioners do not have a case that as on 18.6.2001, the sweeping area of the Homoeo Dispensary, which at that time was functioning in a rented building, was less than 100 sq.mtrs. On the other hand, the specific case of the applicant is that the sweeping area of that building was 222 sq.mtrs. That being the case, the applicant cannot be denied the benefit of Annexure A1 order on the specious reason that the dispensary was subsequently shifted to a new building, whereupon the sweeping area got reduced. For the foregoing reasons, we find no merit in the original petition and the same is dismissed. No order as to costs. Sd/- ## **K.VINOD CHANDRAN JUDGE** Sd/- ## **V.G.ARUN** **JUDGE** _vgsx_ _**OP(KAT).369/19**_ 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE O.A.NO.2007/2012 ALONG WITH ANNEXURES BEFORE THE HONOURABLE KERALA ADMINISTRATIVE TRIBUNAL.** **EXHIBIT P1(A1)** **TRUE COPY OF GO(P)NO.501/2005/FIN.DATED 25.11.2005.** **EXHIBIT P1(A2) TRUE COP YOF THE SWEEPING AREA CERTIFICATE DATED 26.07.2006.** **EXHIBIT P1(A3)** **TRUE COPY OF THE CERTIFICATE DATED 21.07.2008.** **EXHIBIT P1(A4) TRUE COPY OF THE LETTER NO.E/2986/06/DMP DATED 02.01.2007.** **EXHIBIT P1(A5) TRUE COPY OF CIRCULAR NO.58/07/FIN.DATED 05.07.2007.** **EXHIBIT P1(A6) TRUE COPY OF JUDGMENT DATED 10.12.2007 IN W.P.(C)NO.34163/2007.** **EXHIBIT P1(A7) TRUE COPY OF JUDGMENT DATED 07.07.2010 IN W.A.NO.1869/2009** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 15.12.2017 IN O.A.NO.2007/2012.**