State of Kerala & Ors. v. M. Raju

OP(KAT)No.246/2019 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 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942** ## **OP(KAT).No.246 OF 2019** **AGAINST THE ORDER IN TA 7538/2012 DATED 27-11-2018 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN TA:** **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001 2 THE DISTRICT COLLECTOR, ALAPPUZHA, PIN 688 001** **3 THE TAHSILDAR, CHERTHALA, PIN 688 524** **BY SR.GOVERNMENT PLEADER SRI B. VINOD** ## **RESPONDENT/APPLICANT IN TA:** **M.RAJU, S/O. MANIYAPPAN, RESIDING AT KUNNUNKAL HOUSE, S.L PURAM P.O, ALAPPUZHA, PIN 688 523 CASUAL SWEEPER, VILLAGE OFFICE, MARARIKULAM NORTH, CHERTHALA TALUK, ALAPPUZHA DISTRICT PIN 688 524** **BY ADV. SRI.KALEESWARAM RAJ BY ADV. SRI.VARUN C.VIJAY BY ADV. KUM.A.ARUNA BY ADV. KUM.THULASI K. RAJ BY ADV. SMT.RIYA RAYMOL IYPE** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 15.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT)No.246/2019 2 # **ALEXANDER THOMAS & T.R. RAVI, JJ.** **-----------------------------------------------O.P.(KAT) No.246 of 2019** [ _Arising out of order dated 27.11.2018 in T.A.No. 7538 of 2012 of KAT,Tvm._ ] **-------------------------------------------------Dated this the 15[th] 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 27.11.2018 in T.A.No.7538 of 2012, on the file of the Kerala Administrative Tribunal, Thiruvananthapuram (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 payment of enhanced pay and consequential arrears of pay to the respondent. By G.O.(P) No.831/80/Fin. dated 3.11.1980, the Government had sanctioned benefits to part time contingent employees, whereby the remuneration payable to them was revised. The revision was based on the sweeping OP(KAT)No.246/2019 3 area or the area to be cleaned by such part time contingent employees/sweepers. The rates were specified therein for two different types of cases depending on whether the sweeping area was less than 200 M[2 ] or more than 200 M[2] . Subsequently, by a pay revision order G.O.(P) No.3000/98/Fin. dated 25.11.1998 which came into effect on 01.03.1997, certain modifications were ordered. The categorisation was also different as per the pay revision order. Accordingly, Part Time Sweepers who were sweeping an area above 100 M[2] but below 400 M[2] were to be paid at the revised rate of Rs.1,250/- per month plus DA and persons who were sweeping an area above 400M[2] , but below 800 M[2] were to be paid at the rate of Rs.1,500/- per month plus DA. Enhanced pay was available to persons who were put in service as part time employees for 10 years, 20 years and 25 years. With respect to casual sweepers who were sweeping an area of less than 100 M[2] , the Government issued G.O.(P) No.3002/98/Fin. dated 25.11.1998 ordering that such persons will be paid at the rate of Rs.600/- per month with effect from 1.11.1998. 3. Faced with denial of pay in accordance with the pay revisions and threat of losing their engagement on the ground that they OP(KAT)No.246/2019 4 are casual sweepers, several persons approached this Court by way of writ petitions. In the meanwhile, the Government issued G.O.(P) No.390/03/Fin. dated 17.07.2003, which said that Part Time Sweepers should be engaged only for a period of two months and should be changed every two months. The above order was however withdrawn as per G.O.(P) No.500/2003/Fin. dated 25.9.2003. The Government thereafter issued letter No.28555/T1/03/RD dated 6.10.2003 clarifying that the sweeping area is the area excluding staircase, veranda, courtyard, etc. The order also said that if casual sweepers are appointed for two months and sweeping is more than 100 M[2] they can be paid at par with part time sweepers and in cases where the area is below 100M[2] such persons are to be paid at the rate of Rs.600/- per month as a consolidated pay. There was also a direction to make appointments through Employment Exchange for the sanctioned post. 4. A learned Single Judge of this Court in the judgment in **Mercy v. State of Kerala** reported in [2004 (2) KLT 848] disposed of a batch of writ petitions with certain directions. In the cases before the learned Single Judge, the petitioners were all persons who were engaged prior to 6.10.2003 on which day, the Government had issued OP(KAT)No.246/2019 5 clarifications regarding the manner of calculation of sweeping area. It was directed that the sweeping area with regard to persons who were engaged prior to 6.10.2003, is to be calculated as the carpet area, veranda, corridor, staircase and the courtyard, usually swept. It was also held that in any case the area shall not exceed 1½ times the plinth area. It was further held that since the State had enjoyed the fruits of the labour of such persons, they shall not be terminated from service for the only reason that they have not been appointed through the Employment Exchange. The Court further directed that all the Part Time Sweepers who have approached the Court as well as those who have not approached the Court shall be paid wages including arrears on the basis of the pay revision order with effect from 01.03.1997. 5. The judgment of the learned Single Judge was carried in appeal by the State and its Officers. Pending the appeal, the Government issued GO(P)No.361/2005/Fin. dated 02.08.2005, whereby a scheme was evolved regarding regularisation of the existing eligible casual sweepers and regarding the appointments against future arising vacancies of sweepers in Government offices. A Division Bench of this Court disposed of the appeals filed by the State by judgment OP(KAT)No.246/2019 6 dated 12.08.2005 in **State of Kerala & Ors. v. M.M.Mercy & Ors. (W.A.No.1863 of 2004 and connected cases)** . After referring to the scheme proposed in G.O.(P) No.361/2005/Fin. dated 02.08.2005, the Division Bench noted that in the light of the Scheme framed, the issue remains in a narrow compass regarding the directions contained in paragraph 15 of the judgment of the learned Single Judge in the judgment in **Mercy v. State of Kerala** [2004 (2) KLT 848], relating to the payment of arrears. The Division Bench in paragraph 18 held that the sweeping area is a matter to be found on actual measurement at the instance of the respective officers under the supervision of the head of the district of the concerned Department with the aid of an Engineer from the Public Works Department, taking into account of the requirement of the offices concerned. It was further held that in cases where sweeping area is disputed, the same shall be fixed by causing actual measurement with notice to the incumbents concerned in their presence. On the basis of the judgment of the Division Bench, the Government modified the order dated 02.08.2005 and carved out a fresh a order GO(P) No.501/2005/Fin. dated 25.11.2005 to govern the cases of regularisation of existing eligible casual sweepers and OP(KAT)No.246/2019 7 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. Paragraph 11 of the Government order deals with cases where the sweeping area on re-measurement, increases from below 400 M[2] to above 400 M[2] , requiring the payment of higher remuneration. The order provided for a fresh certification of the sweeping area of the existing premises within one year from the date of the order. It also said that if the sweeping area on refixation reduces to OP(KAT)No.246/2019 8 below 100 M[2] , the existing incumbent shall continue to get Rs.1250/plus DA which he was getting and that vacancy in the said post shall be filled up only by a casual sweeper, by paying Rs.600 per month. 6. The respondent herein was working as a part-time sweeper in Village Office, Mararikulam North from 1999. He along with some others had filed W.P.(C)No.8248 of 2003 seeking the benefits of the Government orders in respect of wages. By Ext.P1 judgment dated 30.5.2003, this Court held that the respondent and others are entitled to get salary at the rates prescribed by the Government for regular Part Time Sweepers from time to time and directed the respondents therein to disburse the salary including arrears due to the petitioners therein in accordance with the Government order dated 25.11.1998. On the basis of Ext.P1 judgment, the salary of the respondent was enhanced to Rs.1500/- plus DA per month as can be seen from Ext.P2. The petitioners were bound to pay the salary as revised during the 1997 pay revision as had been directed in **Mercy (supra)** [2004 (2) KLT 848], since the respondent was a person who was being engaged much before 2003. After a few months, the salary that was paid to the respondent was reduced. In spite of representations seeking enhanced pay, the OP(KAT)No.246/2019 9 same was not paid. The respondent thereupon filed W.P.(C)No. 534 of 2011 before this Court claiming salary at the rates shown in Ext.P2 together with arrears and to continue to pay the same subject to further pay revisions. A counter affidavit was filed on behalf of the petitioners contending that the salary was reduced on the basis of a clarification issued by the Government on 6.10.2003. After the formation of the Tribunal, the writ petition was transferred to the Tribunal and was renumbered as T.A.No.7538 of 2012. 7. The Tribunal by order dated 27.11.2018, allowed the original application holding that persons who were already getting enhanced salary, were entitled to continue to get the same even if the sweeping area is reduced subsequently, going by the terms of G.O.(P) 501/2005/Fin. dated 25.11.2005. Aggrieved by the above order, this original petition is filed. Before this Court also, except for the contentions taken before the Tribunal, no new contentions are taken. We do not find any illegality, impropriety or irregularity in the order of the Tribunal. The Government order dated 25.11.2005 has in fact been issued after taking into account the various judgments of this Court on the subject. The protection of pay granted to the existing sweepers in OP(KAT)No.246/2019 10 paragraph 11 of the Government order dated 25.11.2005, is very much in tune with the several binding judgments of this Court. The order also provides that the sweeping area should be refixed only with notice to the incumbent and in his/her presence. There is absolutely no pleading on behalf of the petitioners that there has been such a refixation. Even if there had been such a refixation and the area had reduced to below 100 M[2] , having regard to the protection of pay granted to incumbents, and particularly persons who already have a judgment of this Court in their favour, the petitioners could not have reduced the pay. Moreover, the order dated 6.10.2003 had already been considered by this Court in its judgment in **Mercy (supra)** [2004 (2) KLT 848], where in it was held that persons like the respondent were entitled to be paid the wages as revised in 1997. 8. We do not find any reason to interfere with the well considered order issued by the Tribunal. No grounds have been made out for interference with the order of the Tribunal in exercise of the extraordinary and supervisory jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. The time granted by the Tribunal for compliance with the directions issued is long over. In the OP(KAT)No.246/2019 11 above circumstances, we deem it fit to grant the petitioners a further time of 6 weeks from the date of receipt of a certified copy of this judgment, to comply with the directions issued by the Tribunal in its order dated 27.11.2018 in T.A.No.7538 of 2012. With the above modification of the order of the Tribunal, the original petition is dismissed. The parties will suffer their respective costs. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn OP(KAT)No.246/2019 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF TA No.7583/12 ALONG WITH ANEXURE BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** **EXT.P1(A1): TRUE COPY OF JUDGMENT DT.30.5.2003 IN OP No.8248/2003.** **EXT.P1(A2): TRUE COPY OF ORDER DT.12.9.03. EXT.P1(A3): TRUE COPY OF REPRESENTATION DT.21.7.2010 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXT.P2: TRUE COPY OF COUNTER AFFIDAVIT FILED ON BEHALF OF THE SECOND PETITIONER IN THIS COURT IN THE AFORESAID TRANSFERRED APPLICATION DT.5.9.2012. EXT.P3: COPY OF ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DT.27.11.2018.**