State of Kerala & Ors. v. B. Thankamany and Aruvikkara Grama Panchayath

W.A No.238 of 2021 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **WA.No.238 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 12052/2015(F) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 3:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,**| ||**LOCAL SELF GOVERNMENT DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695001.**| |**2**|**DIRECTORATE OF PANCHAYATS,**| ||**THIRUVANANTHAPURAM - 695033.**| |**3**|**DEPUTY DIRECTOR OF PANCHAYATS,**| ||**THIRUVANANTHAPURAM - 695033.**| **SRI.B.VINOD, SR.GOVT.PLEADER** ## **RESPONDENTS/PETITIONER AND 4TH RESPONDENT:** |**1**|**B.THANKAMANY, AGED 46 YEARS**| |---|---| ||**PAMMATHUMOOLA CHARUVILA PUTHEN VEEDU,**| ||**KACHANI, KARAKULAM P.O,**| ||**THIRUVANANTHAPURAM - 695564, (PART-TIME SWEEPER,**| ||**ARUVIKKARA GRAMA PANCHAYAT, ARUVIKKARA,**| ||**THIRUVANANTHAPURAM - 695564).**| W.A No.238 of 2021 2 **2 ARUVIKKARA GRAMA PANCHAYAT REPRESENTED BY SECRETARY, ARUVIKARA GRAMA PANCHAYAT, ARUVIKKARA, THIRUVANANTHAPURAM - 695564.** **R1 BY ADV. SRI.B.RAGHUNATHAN R1 BY ADV. SRI.M.SALIM R1 BY ADV. SRI.V.M.JACOB R2 BY ADV. SRI.VISHNU BHUVANENDRAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A No.238 of 2021 3 ## **ALEXANDER THOMAS & K.BABU, JJ. ============================ W.A No.238 of 2021** _(arising out of judgment dated 31.5.2019 in_ _W.P(C) No.12052/2015_ **============================** Dated this the 30[th] day of March, 2021 ## **J U D G M E N T** ## **Alexander Thomas, J** The State of Kerala and the departmental officers of the Panchayath department, who were arrayed as respondents 1 to 3 in the instant W.P(C) No.12052/2015 have filed this intra court appeal under Section 5 of the Kerala High Court Act so as to impugn the judgment dated 31.5.2019 by the learned Single Judge allowing the said writ petition filed by the 1[st] respondent herein. 2. Heard Sri.B.Vinod, the learned Senior Government Pleader appearing for the appellants in the writ appeal/respondents 1 to 3 in the writ petition. Sri.B.Raghunathan, the learned counsel appearing for the 1[st] respondent/writ petitioner and Sri.Vishnu Bhuvanendran, the learned advocate appearing for the 2[nd] respondent herein (Aruvikkara Grama Panchayath)/4[th] respondent in the writ petition. 3. The 1[st] respondent herein had filed the instant W.P(C) W.A No.238 of 2021 4 ## No.12052/2015 with the following prayers: (See page Nos.20 of the paper book of this writ appeal) “i) issue a writ of mandamus or other appropriate writ, direction or order to the respondents to regularise the service of the petitioner in the post of Full Time Contingent Sweeper/Part Time Contingent Sweeper w.e.f 18.6.2001 with all consequential benefits including arrears of salary in the scale of pay. ii) grant such other orders which this Hon'ble Court may deem fit and proper in the circumstances of the case.” 4. The writ petitioner was appointed as Part Time Contingent Sweeper by the 2[nd] respondent Grama Panchayath in the year 1994 and she had sought for regularisation on the basis of resolution passed by the 2[nd] respondent Grama Panchayath and also placing reliance on Ext.P7 G.O(P) No.501/2005/Fin. Dated 25.11.2005, whereby the Government have decided to regularisation of service of existing Casual Sweepers etc. The learned Single Judge has disposed of the instant writ petition along with two other connected matters. It is beyond any dispute that the petitioner has been in service as Sweeper in the 2[nd] respondent Panchayath prior to the cut of date mentioned in Ext.P7 Government Order dated 25.11.2005. So also there is no dispute that the sweeping area in respect of the work done by the petitioner is much above the threshold limit of 100 sq. and above. W.A No.238 of 2021 5 5. In para 7 of the present writ petition it is averred by the petitioner that the sweeping area assigned to the petitioner is 3014 sq.metre. The resolution of the Panchayat along with the certificate of the Assistant Engineer, LSGD certifying the sweeping area and connected documents were also made available to the Deputy Director of Panchayath for taking action in the matter of regularisation of the petitioner in terms of Ext.P7 Government Order dated 25.11.2005 has been rejected. One of the main objection taken by the official respondents to justify the rejection of the plea of the petitioner for regularisation is that Ext.P7 Government Order will not apply to the sweepers employed in Panchayath markets or Municipal markets as the same applies only to the officer in Government Departments etc. For that the petitioner has placed reliance on Ext.P8 Government order dated 14.12.2009 issued subsequently to Ext.P7 Government Order dated 25.11.2005 and that subsequently Government has issued executing orders, clarifying that Ext.P7 Government Order dated 25.11.2005 will not apply in the claims of Sweepers working in Municipal markets and Panchayath markets. Further that there are no sanctioned post of Sweepers in the W.A No.238 of 2021 6 Panchayath so as to accommodate the claims of the petitioner for regularisation. Yet another ground is that the petitioner has been engaged by the Panchayath committee and not through Kudumbasree units etc. The learned Single Judge, after hearing both sides has held that the Sweepers like the petitioner who are engaged to do the sweeping work in Panchayath area are also entitled to get the benefit of regularisation in terms of Ext.P7 Government order. Further that the petitioner was engaged by the Panchayath committee at a point of time when the system of engagement of Sweepers through the Kudumbasree unit was not in force and that there is no requirement in any of the Government orders in force that the petitioner should have been necessarily engaged through the Kudumbasree or through the Employment Exchange, In that view of the matter the learned Single Judge quashed the order passed by the Government rejecting the claim for regularisation and was directed that the claim of the petitioner for regularisation and for creation of post considered by the Government and that the orders in that regard should be rendered by the Government taking note of Ext.P6 certificate issued by the Assistant Engineer, LSGD. Further that the Panchayath shall provide W.A No.238 of 2021 7 any further details or clarifications as required by the Government. Accordingly, the 1[st] respondent in the writ petition (State Government) has directed to pass orders on the above said plea for regularisation and creation of posts and for regularistion of service and payment of due wages with effect from 18.6.2001 in accordance with Exts.P7 and P8 Government orders within three months etc. The matter in issue is covered in favour of the petitioner by various decisions rendered both by Single Judge and Division Bench of this Court. The learned Single Judge of this Court has rendered judgment on 19.12.2016 in W.P(C) No.16151/2010 and the stand that the Government Order dated 25.11.2005 will not apply to the persons who are engaged to sweep market place and public roads in local bodies is distressing and that the attitude is very harsh and uncharitable and this Court has held that no distinction can be drawn between persons who sweeps office buildings and one who sweeps public places or market places. This Court further observed therein that the persons sweeping the market places or public places would be doing a more arduous job. The above said judgment of this Court in W.P(C)No.16151/2010 has been relied on by the Kerala Administrative W.A No.238 of 2021 8 Tribunal in a quite few cases. Similar judgment has also been rendered by a learned Single Judge of this Court on 5.2.2020 in W.P(C) No.3866/2011 and judgment dated 11.2.2020 in W.P(C) No.1099/2011. These aspects have been considered in detail in a recent judgment rendered on 9.3.2021 by the Division Bench of this Court in O.P(KAT) No.382/2020 (arising out of O.A.No.1559/2018 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram Bench). After noting the above said decision in the above said writ petition, the Division Bench has held that the benefit of regularization in terms of the above said Government Order dated 25.11.2005 is also applicable in the case of Sweepers who are engaged to do sweeping works in public places and market places in Panchayath etc. This Court held that the said scheme has been framed by the Government in terms of the Government order dated 25.11.2005 on the basis of the directions issued by the learned Single Judge of this Court in **Mercy v. State of Kerala (2004)(2) KLT 848)** confirmed by a Division Bench of this Court judgment dated 12.8.2005 in **State of Kerala & Ors. v. M.M.Mercy & Ors.** (W.A No.1863 of 2004 and connected cases). On this basis the W.A No.238 of 2021 9 Government has issued the above said G.O(P) No.501/2005/Fin. dated 25.11.2005, introducing a scheme to govern the cases of regularization of existing eligible casual sweepers and regarding appointments to future vacancies. Para 8 of the above Government order deals with regularization 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. Wherever the sweeping area exceeds 100 M2 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. The benefit of Ext.P7 Government Order has also been extended to the sweepers working in Panchayath Office as per Ext.P8 GO(Rt) No.3312/09/LSGD dated 14.12.2009. 6. One of the main objections now raised by the learned Senior Government Pleader is to the effect that subsequently the W.A No.238 of 2021 10 Government has issued G.O(P) No.61/2009/Fin. dated 9.9.2009 ordering that the benefit of Ext.P7 Government Order will not be applicable in the case of Sweepers, who are engaged to sweep public places and market places within the local bodies. Analogous issue has been dealt with in the common judgment dated 7.7.2010 rendered by the Division Bench of this Court in W.A Nos.1869/2009, 2199/2009 and 2218/2009 wherein this Court has held in para 2 of the said judgment that the contention raised by the State Government therein that another Government Order dated 9.2.2010 has been issued to get over the judgment in similar cases referred to therein, cannot be countenanced in as much as the benefit of Government Order dated 25.11.2005 has been made for framing a scheme to implement the directions and orders passed by this Court in the judgments referred to hereinabove and that in the judgment in **Mercy v. State of Kerala** [2004 (2) KLT 848]) and that therefore when the law has been declared by judicial declaration and intervention, it may be right and proper for the Government to issue subsequent Government orders to take away the benefit of scheme. The Division Bench of this Court in the judgment dated 9.3.2021 in W.A No.238 of 2021 11 O.P(KAT) No.382/2020 has upheld the directions given for regularization of Sweepers engaged in Panchayath areas. We are in concurrence with the above said views rendered by the Division Bench of this Court in O.P(KAT) No.382/2020 etc. The learned Single Judge cannot be faulted for having rendered the impugned directions in this case that the writ petitioner herein is entitled the benefit of Exts.P7 and P8 Government Order etc. Hence no interference is called for in respect of the directions and orders rendered by the learned Single Judge in the instant W.P(C) No.12052/2015. However, we note that the directions of the learned Single Judge has been rendered in the above writ petition on 31.5.2019. The present writ appeal has been filed on 25.1.2021. The time given for compliance of the directions rendered by the learned Single Judge in the above said judgment elapsed long ago. Hence it is ordered that the petitioner will ensure that the directions and orders rendered by the learned Single Judge in the above said judgment has been complied with by the appellants without any further delay, at any rate, within two weeks from the date of receipt of a copy of this judgment. W.A No.238 of 2021 12 With these observations and directions, the above Writ Appeal will stand dismissed. **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** **Sd/K. BABU JUDGE** **ab**