State of Kerala represented by the Secretary to Government, Local Self Government Department, Government Secretariat, Thiruvananthapuram; Commissioner, Rural Development, Commissioner of Rural Development, LMS Compound, Thiruvananthapuram; Project Director, Poverty Alleviation Unit, District Panchayath, Kalpetta North, Wayanad v. Jameela V.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942** **OP(KAT).No.63 OF 2021** **AGAINST THE ORDER DATED 5.11.2019 IN OA (EKM) 314/2015 DATED 05-11-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENT NOS.1 TO 3 IN O.A.:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE COMMISSIONER, COMMISSIONER OF RURAL DEVELOPMENT, COMMISSIONER OF RURAL DEVELOPMENT,LMS COMPOUND, THIRUVANANTHAPURAM-695033. 3 THE PROJECT DIRECTOR, POVERTY ALLEVIATION UNIT, DISTRICT PANCHAYATH, KALPATTA NORTH.P.O, WAYANAD-673122.** **BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL** ## **RESPONDENT/APPLICANT IN O.A.:** **JAMEELA.V PART TIME SWEEPER ON DAILY WAGES, POVERTY ALLEVIATION UNIT, DISTRICT PANCHAYATH,KALPATTA NORTH.P.O, WAYANAD DISTRICT,-673122,RESIDING AT SHANI MAHAL,ANAPPARA,MUTTIL.P.O, WAYANAD-673122.** **SRI.S.PRASANTH (AYYAPPANKAVU)** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 02.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) No.63/2021 2 ## **ALEXANDER THOMAS & K.BABU, JJ.** **------------------------------------------------------** _O.P.(KAT) No.63 of 2021_ _(Against the order dated 5.11.2019 in O.A.(EKM) No.314/15 of KAT, Thiruvananthapuram)_ **--------------------------------------------** _Dated this the 2[nd] day of March, 2021_ ## **JUDGMENT** ## **K.Babu, J.** The challenge, in this Original Petition filed under Article 227 of the Constitution of India, is against the order dated 5.11.2019 in O.A. (EKM) No.314 of 2015 of the Kerala Administrative Tribunal, Thiruvananthapuram (For short ‘the Tribunal'). 2. The sole respondent (Original Applicant) filed Exhibit P1 O.A. with the following prayers. - _“(i) To issue a direction to the first and second respondents to consider and pass orders on Annexure A3 proposal submitted by the third respondent._ - _(ii) To issue a direction to the first respondent to regularise the service of the applicant as part time sweeper with effect from the date of her initial engagement and to grant her all consequential benefits ; and_ - _(iii) To issue such other appropriate writ, order or direction as this Hon’ble Tribunal may deem just and proper to issue in the circumstances of the case.”_ 3. The Tribunal passed Exhibit P3 order directing the O.P.(KAT) No.63/2021 3 petitioners/official respondents to regularise the original applicant. 4. We have heard Sri.B.Unnikrishna Kaimal, learned Government Pleader appearing for the petitioners and Sri.S.Prasanth (Ayyappankavu), learned counsel appearing for the respondent. 5. The following facts are not in dispute in this case. (a) The original applicant has been in continuous engagement as casual sweeper with effect from 5.4.1999, initially in the DRDA, Wayanad, the office of which merged with the District Panchayat in the year 2006, and thereafter in the Poverty Alleviation Unit (PAU) of the District Panchayat. (b) The office where the original applicant was engaged has had a sweeping area more than 100 sq. mtrs. 6. The plea of the original applicant is that, as she has uninterrupted service initially in the DRDA and then in the PAU with effect from 16.6.2003 and further that the office where she is employed as a casual sweeper is having a sweeping area more than 100 sq. mtrs., she is entitled to be regularised in the light of the directions in the G.O.(P) No.361/2005/Fin. dated 2.8.2005. 7. The official respondents resisted the application on the ground that the office where the original applicant was employed was a temporary establishment and therefore, a permanent post could not O.P.(KAT) No.63/2021 4 be created. It is further contended that the staff of Poverty Alleviation Unit are appointed either on deputation or on contract basis and the applicant who was engaged on daily wages is not entitled to be regularised, especially, in view of the law declared in ## _**Secretary, State of Karnataka and others v. Umadevi and others [(2006) 4 SCC 1]**_ . 8. After considering the rival contentions and the material on record, the Tribunal entered into the following findings : - (a) The challenge against the regularisation in service on the ground that the office, where the applicant was employed, was a temporary establishment and that a permanent post could not be created is not sustainable in the light of the decision of the Division Bench of this Court in Writ Appeal No.2199 of 2009. On issuance of G.O.(P).No.501/2005/Fin. dated 25.11.2005 and when the applicant was in service as on the above date, the official respondents were bound to ensure that necessary proposals were forwarded for regularisation of service. - (b) The fact that PAUs of District Panchayat office are temporary establishments will not stand in the way of the applicant being considered for regularisation in the light of O.P.(KAT) No.63/2021 5 the decision of this Court in Writ Appeal No.2199 of 2009. (c) The law declared in _Umadevi_ (supra) will not apply when the Government have issued guidelines for regularisation and the grievance raised is non compliance of the G.O.(P).No.501/2005/Fin. dated 25.11.2005. 9. On the basis of the above findings, the Tribunal directed the petitioners to issue orders for regularisation of the respondent/original applicant within a period of four months from the date of receipt of a copy of the order. The Tribunal also held that the respondent/original applicant would be entitled to regularisation with effect from 18.6.2001 and for all consequential benefits thereon. 10. This Original Petition is filed by the respondents in the O.A. on being aggrieved by the above order. 11. The major challenges raised by the petitioners/official respondents are the following : - (a) Since the Poverty Alleviation Unit was not a permanent establishment, a permanent post of Part-time sweeper could not be created in the Poverty Alleviation Unit and hence the respondent was not eligible for regularisation in service. - (b) The Honourable Supreme Court in _Umadevi_ (supra) O.P.(KAT) No.63/2021 6 has declared that temporary employees on daily wages have absolutely no right for regularisation. 12. Based on the directions issued by this Court in _**Mercy v. State of Kerala (2004 (2) KLT 848)**_ and other connected cases for effectuating the considered policy decision, the competent authority of the Government in Finance Department has issued G.O. (P) No.501/2005/Fin. dated 25.11.2005. 13. The G.O.(P).No.501/2005/Fin. dated 25.11.2005, issued based on the directions of this Court in _Mercy v. State of Kerala (supra)_ , mandates that where the casual sweepers have been employed as on or prior to the G.O. dated 25.11.2005 and the sweeping area exceeds the minimum threshold level of 100 sq.mtrs. as on the date of issuance of the said G.O., then they are entitled for regularisation and the sweeping area will have to be calculated and computed strictly in accordance with the norms and guidelines contained in the appendix of the said G.O. dated 25.11.2005. It has also been directed in the G.O. that for such regularisation, posts shall be created with effect from the date of appointment of the incumbent as casual sweeper or from 18.6.2001 (Three years preceding the date of the abovesaid common judgment dated 18.6.2004 in W.P.(C) No.30927 of 2003 of this Court, referred to as item No.10 of the G.O. O.P.(KAT) No.63/2021 7 dated 25.11.2005, whichever is later, etc.). 14. In the given case, there is no dispute that the original applicant had been engaged as a sweeper in the Government office concerned prior to the cut off date i.e., 25.11.2005 and that the sweeping area of the office premises in question exceeded 100 sq. mtrs. The challenge of the petitioners, relying on the law declared in _Umadevi_ (supra) is not sustainable as the regularisation sought is on the basis of the guidelines for regularisation framed by the Government on the basis of the directions issued by this Court in _Mercy v. State of Kerala_ (supra). As the petitioners have no case that any of the guidelines in G.O.(P).No.501/2005/Fin. dated 25.11.2005 are violated, the challenge relying on _Umadevi_ (supra) will not sustain. 15. Similar or identical issue has already been considered by a Division Bench of this Court as per the the common judgment rendered on 7.7.2010 in W.A.Nos.1869, 2199 and 2218 of 2009 and the objection raised against the regularisation in service on the basis of the above said norms on the ground that the office, where the sweeper was working, was temporary establishment, was overruled by the Division Bench of this Court and it was held therein that the nature of the office, whether it was temporary or permanent, cannot O.P.(KAT) No.63/2021 8 be ground for regularisation benefit. It was specifically held in the said judgment in the above writ appeals that the fact that the Poverty Alleviation Units in the District Panchayat offices were temporary establishments will not stand in the way of the sweeper therein, being considered for regularisation and that the decision of the Apex Court in _**Umadevi's case**_ [2006 (4) SCC 1] will not apply when the Government themselves have issued guidelines for regularisation of casual sweepers and that the norms in the G.O(P) No.501/ 2005/Fin. dated 25.11.2005 should be strictly adhered to by the officials concerned. The Division Bench also held therein that since the scheme of regularisation as per the Government orders has been issued in compliance with the directions issued by this Court in the judgments mentioned therein and the legal position has been declared by this Court, then such benefits directed to be given in terms of the scheme framed on the basis of the directions in the judgments of this Court, cannot be taken way by subsequent executive orders, etc. The Tribunal as per the impugned Ext.P3 final order has rightly placed reliance on the abovesaid Division Bench judgment rendered on 7.7.2010 in W.A.No.2199 of 2009 and connected appeals. 16. We are of the firm view that the Tribunal has not O.P.(KAT) No.63/2021 9 committed any illegality or impropriety in rendering the impugned Exhibit P3 final order. 17. The resultant conclusion is that the impugned order passed by the Tribunal (Ext.P3) requires no interference at the hands of this Court in exercise of the powers of judicial review and superintendence. 18. However, taking note of the fact that the impugned order had been rendered by the Tribunal on 5.11.2019, it is ordered that the directions rendered by the Tribunal in favour of the original applicant shall be complied with by the respondents in the O.A. within an outer time limit of six weeks from the date of receipt of a certified copy of this judgment. The order of the Tribunal will stand modified to the above extent. With these observations and directions, the above Original Petition stands dismissed. Sd/- ## **ALEXANDER THOMAS JUDGE** Sd/- **K.BABU, JUDGE** csl O.P.(KAT) No.63/2021 10 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ABOVE O.A.NO.314/15 ALONG WITH ITS ANNEXURES.** **ANNEXURE A1 TRUE COPY OF THE G.O.(P)NO.501/2005/FIN DATED 25.11.2005** - **ANNEXURE A2** - **TRUE COPY OF THE LETTER NO.28732/ESTT.C4/05/C.R.D DATED 22.03.2006 SENT BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT** - **ANNEXURE A3 TRUE COPY OF THE LETTER NO.PD1/2005/04 DATED 11.11.2014 SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.** - **ANNEXURE A4 TRUE COPY OF THE CERTIFICATE OF SWEEPING AREA ISSUED BY ASSISTANT ENGINEER,PWD BUILDINGS SECTION,KALPETTA** - **ANNEXURE A5 TRUE COPY OF THE G.O(RT)NO 1200/2014/LSGD DATED 19.05.2015 ISSUED BY THE 1ST RESPONDENT** - **ANNEXURE A6 TRUE COPY OF THE JUDGMENT DATED 24.03.2009 IN WP(C)NO.9444/2009** **EXHIBIT P2 TRUE COPY OF THE REPLY FILED DATED 21.08.2015 FILED BY THE 1ST RESPONDENT ALONG WITH ANNEXURE. ANNEXURE R1(a) TRUE COPY OF THE G.O(P)NO.61/10/FIN DATED 09.02.2010 EXHIBIT P3 TRUE COPY OF THE ORDER DATED 05.11.2019 IN O.A.(EKM)NO.314/2015.**