High Court of KeralaDivision Bench2021-03-09Dismissed (Original Petition); Tribunal’s order...

State of Kerala represented by the Secretary to Government, Local Self Government Department, Government Secretariat, Thiruvananthapuram; Commissioner, Commissioner of Rural Development, Commissionerate of Rural Development, LMS Compound, Thiruvananthapuram; Project Director, Poverty Alleviation Unit, District Panchayat, Civil Station P.O, Kottayam v. Kunjumol Mathew and The District Panchayat, Kottayam

Case / Petition Number:OP(KAT) No.329/2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Alexander Thomas, J.
K. Babu, J.
Judgment Date: 2021-03-09
Court Decision / Holding: Original Petition stands dismissed; however, the Tribunal’s Exhibit P4 order is modified: the Government is to comply with sanctioning the post and regularising the applicant within six weeks from the date of judgment, with monetary benefits to be released within two months from the date of regularisation.
Final Disposition: Dismissed (Original Petition); Tribunal’s order modified to require compliance within six weeks with six-week deadline for sanction/regularisation and two-month window for monetary benefits.

Parties to the Case

Appellants / Petitioners

State of Kerala represented by the Secretary to Government, Local Self Government Department, Government Secretariat, Thiruvananthapuram, PIN-695001
The Commissioner, Commissioner of Rural Development, Commissionerate of Rural Development, LMS Compound, Thiruvananthapuram, PIN-695033
The Project Director, Poverty Alleviation Unit, District Panchayat, Civil Station P.O, Kottayam, PIN-686002

Respondents

Kunjumol Mathew
The District Panchayat, Kottayam represented by its Secretary, Civil Station P.O, Kottayam, PIN-686002

Legal Representation & Advocates

Counsels for Petitioners

• Sri. B. Unnikrishna Kaimal (Government Pleader)

Counsels for Respondents

• Sri S. Prasanth (Ayyappankavu)
• Sri Varsha Bhaskar
• Sri Paul Jacob (P)

Case Synopsis & Summary

This is an original petition (OP(KAT) No.329/2020) challenging the Kerala Administrative Tribunal’s February 27, 2019 order (Exhibit P4) in OA(Ekm) No.1332/2015, which directed the Government to sanction a post of part‑time sweeper in the Poverty Alleviation Unit (PAU) of the District Panchayat, Kottayam, and to regularise Kunjumol Mathew, a casual sweeper in continuous service since 16.6.2003. The petition contends that the PAU is a temporary establishment and that regularisation cannot be conferred on a permanent basis without a sanctioned post, emphasising that the Government had repeatedly rejected similar proposals (Annexures A5, A7, A18) and that the law in Umadevi’s case (Secretary, State of Karnataka v. Umadevi, 2006) applies to casual workers. The respondents argue that the PAU’s nature as a temporary setup does not bar regularisation under policy guidelines, notably G.O.(P).No.501/2005/Fin dated 25.11.2005, and that Mercy v. State of Kerala and related judgments have prompted a framework for regularisation where sweeping areas exceed 100 sq.mtrs. The Tribunal had directed compliance within three months; this Court, while not finding illegality in the Tribunal’s order, modifies it and directs compliance within six weeks, recognizing the Divisional Bench decisions (W.A. Nos. 1869, 2199, 2218 of 2009) and the GO framework, but dismisses the petition in its broad form. It further holds that monetary benefits shall be released within two months from the date of regularisation. Overall, the decision endorses the GO-based regularisation framework while tailoring its implementation timelines.

Provisions of Law Cited

Article 226 of the ConstitutionArticle 227 of the Constitution

Legal Doctrines & Maxims

Umadevi doctrine (casual workers not entitled to regularisation as a matter of right)
Mercy v. State of Kerala (2004) 2 KLT 848 – policy-driven regularisation under GO 501/2005
Temporary establishment cannot be a bar to regularisation (Division Bench, W.A. Nos. 1869, 2199 and 2218 of 2009)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that the PAU is a temporary establishment and the Government’s rejection of regularisation proposals was justified by the temporary nature of PAU. They relied on GO (P) No. 501/2005/Fin (25.11.2005) and Mercy v. State of Kerala to show that regularisation of casual sweepers can be sanctioned when the required norms (sweeping area >100 sq.mtrs) exist, and that earlier directions by this Court (including W.P.(C) 15211/2006) should guide action. They contended that the establishment’s continuity and the precedent judgments compel regularisation with back benefits as per the Tribunal’s order (Exhibit P4).

Contentions of Respondents

The respondents contended that PAU is a temporary establishment so creating a permanent post is impermissible; they invoked Umadevi’s doctrine to argue that casual workers cannot demand regularisation as a right. They pointed to the Government's repeated refusals (Annexures A5, A7, A18) and argued that the regularisation policy cannot override the temporary nature of PAU, although GO 501/2005 provides norms for occasional regularisation under policy guidelines.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Mercy v. State of Kerala	2004 (2) KLT 848	Positive	Cited to endorse policy-driven regularisation under GO 501/2005 and the framework for regularisation of casual sweepers.
Umadevi v. State of Karnataka and others	(2006) 4 SCC 1	Distinguished	Court states that Umadevi’s rule does not apply where government guidelines for regularisation exist and GO 501/2005 norms must be followed.
W.A. Nos. 1869, 2199 and 2218 of 2009	Division Bench judgement (7.7.2010)	Positive	Held that the temporary vs permanent nature of an establishment cannot bar regularisation when guidelines permit it.
W.P.(C) No.15211/2006	W.P.(C) No.15211/2006	Mentioned Only	Cited as a prior directive influencing decisions, not directly binding on the present challenge.
W.P.(C) No.9444/2009	W.P.(C) No.9444/2009	Mentioned Only	Referenced as part of the evolving administrative decisions; not directly adopted in this judgment.
W.P.(C) No.29960/2009	W.P.(C) No.29960/2009	Mentioned Only	Cited as part of the background case law; not treated as controlling authority in the present decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942** ## **OP(KAT).No.329 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OA (EKM) 1332/2015 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 TO 3 IN O.A.:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN-695001. 2 THE COMMISSIONER, COMMISSIONER OF RURAL DEVELOPMENT, COMMISSIONERATE OF RURAL DEVELOPMENT, LMS COMPOUND,THIRUVANANTHAPURAM, PIN-695033. 3 THE PROJECT DIRECTOR, POVERTY ALLEVIATION UNIT, DISTRICT PANCHAYAT, CIVIL STATION.P.O, KOTTAYAM,PIN-686002.** **BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL** ## **RESPONDENTS/APPLICANT AND 4TH RESPONDENT IN O.A.:** **1 KUNJUMOL MATHEW AGED 54 YEARS, W/O.C.J.MATHUKUTTY, CASUAL SWEEPER, POVERTY ALLEVIATION UNIT, DISTRICT PANCHAYATH,KOTTAYAM, RESIDING AT 'CHACKALA HOUSE', ERAVUCHIRA.P.O, THOTTAKAD,KOTTAYAM,PIN-686539.** O.P.(KAT) No.329/2020 2 **2 THE DISTRICT PANCHAYAT, KOTTAYAM,REPRESENTED BY ITS SECRETARY, CIVIL STATION.P.O,KOTTAYAM, PIN-686002.** **R1 BY ADV. SRI.S.PRASANTH (AYYAPPANKAVU) R1 BY ADV. SMT.VARSHA BHASKAR R2 BY ADV. SRI.PAUL JACOB (P)** **THIS OP (KAT) HAVING BEEN FINALLY HEARD ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) No.329/2020 3 ## **ALEXANDER THOMAS & K.BABU, JJ.** **--------------------------------------------------------** _O.P.(KAT) No.329 of 2020_ _(Arising out of the order dated 27.2.2019 in O.A.(Ekm.) No.1332/2015 of KAT, Thiruvananthapuram)_ **--------------------------------------------------------** _Dated this the 9[th] March, 2021_ ## _**JUDGMENT**_ ## _**K.Babu, J.**_ The challenge, in this Original Petition filed under Articles 226 and 227 of the Constitution of India, is against the order dated 27.2.2019 in O.A. (Ekm) No.1332 of 2015 of the Kerala Administrative Tribunal Thiruvananthapuram (For short ‘the Tribunal'). 2. The prayers in the aforecaptioned O.P.(KAT) are the following : - _“(1) To set aside Exhibit P4 impugned order of the Kerala Administrative Tribunal in O.A.(Ekm.) No.1332/2015._ - _(2) To declare that the first respondent is not entitled to be regularised as Part Time Sweeper in Poverty Alleviation Unit, Kottayam a temporary establishment.”_ 3. We have heard Sri.B.Unnikrishna Kaimal, learned Government Pleader appearing for the petitioners, Sri.S.Prasanth (Ayyappankavu), learned counsel appearing for respondent No.1, Sri.Paul Jacob learned counsel appearing for respondent No.2. O.P.(KAT) No.329/2020 4 ## 4. Respondent No.1, the original applicant, filed ExhibitP1 ## O.A. with the following prayers : - _“(i) To issue an order setting aside Annexure A18 G.O._ - _(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._ - _(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.”_ 5. The Tribunal passed Exhibit P4 order dated 27.2.2019 directing the petitioners/respondents in the O.A., to issue necessary orders sanctioning the post of part time sweeper in the office of the petitioner No.3/respondent No.3 in the O.A. and to regularise the service of the original applicant in the said post. 6. Respondent No.1, the original applicant, has been in continuous service as part time sweeper, initially in the District Rural Development Agency (DRDA) at Kottayam and then in the Poverty Alleviation Unit (PAU) of the District Panchayat at Kottayam with effect from 16.6.2003. In view of the G.O.(P).No.501/2005/Fin. dated 25.11.2005, the Project Officer, DRDA, Kottayam, the office of which was having a sweeping area more than 100 sq.mtrs., submitted necessary proposal for sanctioning the post of sweeper and regularising the original applicant in the post. While the above O.P.(KAT) No.329/2020 5 proposal was pending, DRDA merged with District Panchayat and the office in which the applicant was employed was converted as PAU and the office of the PAU shifted to the building in which the office of the District Panchayat was functioning. After shifting the office to the new premises, petitioner No.3/respondent No.3 in the O.A. forwarded Annexure A3 proposal for sanctioning the post of part time sweeper in the light of Annexure A1 G.O. dated 25.11.2005. This Court, as per judgment dated 24.9.2008 in W.P.(C) No.15211 of 2006, directed petitioner No.1/respondent No.1 in the O.A. to take a decision on Annexure A3 proposal. The Government rejected the proposal by way of Annexure A5 stating that the original applicant would not come within the purview of Annexure A1 Government Order. Later, Annexure A5 order was quashed by this Court by way of Annexure A6 judgment and the Government was again directed to reconsider the matter. By way of Annexure A7 order, dated 19.1.2010, the Government again rejected the proposal stating that the PAU was not a permanent Government establishment and therefore, a permanent post of part time sweeper cannot be created. 7. The original applicant contends that the stand taken by the Government at Annexure A7 is legally not sustainable as the PAU was a continuation of the DRDA. It is also contended that, as per O.P.(KAT) No.329/2020 6 Annexure A13 G.O., the Government had accorded sanction for creating the post of Part Time Sweeper and for regularising the casual sweeper in the said post in the PAU at Idukki. It is further contended by the original applicant that the claim for her regularisation in the DRDA and PAU cannot be denied on the ground that the establishment is not permanent. In Annexure A8 circular, the Government extended the time limit for regularising the service of casual sweepers on the basis of Annexure A1 G.O. Petitioner No.2/respondent No.2 in the O.A. submitted Annexure A9 proposal for regularising the service of part time sweepers working in the PAUs by way of Annexure A11 letter. Petitioner No.3 submitted proposal for regularisation of the original applicant along with the certificate showing the sweeping area and other relevant materials. In Annexure A11 letter, petitioner No.2 had directed petitioner No.3 to submit a proposal for regularisation of the applicant. Accordingly, Annexure A12 proposal, for regularising the applicant, was submitted. By way of Annexure A17 order, the Tribunal directed petitioner No.2 to consider Annexure A12 proposal. The Government, as per Annexure A18 dated 18.6.2012, again rejected the proposal for sanctioning the post of part time sweeper in the PAU of the District Panchayat at Kottayam for the reason that PAUs are O.P.(KAT) No.329/2020 7 temporary projects and that the applicant was not working in a sanctioned post on regular basis. 8. The petitioners/respondents in the O.A. 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 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]**_ . 9. After appreciating the rival contentions and on the basis of the material placed before it, the Tribunal directed the Government to issue necessary orders sanctioning the post of part time sweeper in the office of petitioner No.3 and to regularise the service of the original applicant in the said post within three months from the date of receipt of a copy of the order. The Tribunal also held that the original applicant will be entitled to all consequential benefits and the monetary benefit shall be released to the applicant within a period of two months from the date of the order of regularisation. O.P.(KAT) No.329/2020 8 10. The request of the original applicant seeking regularisation had been rejected by the Government as per Annexure A5 G.O. dated 8.9.2009. But, Annexure A5 order was set aside by this Court by way of Annexure A6 judgment dated 23.10.2009. 11. A subsequent request seeking regularisation of the applicant had also been rejected by way of Annexure A18 G.O. dated 18.6.2015. The Tribunal held that the order rejecting claim of the original applicant seeking regularisation as per Annexure A18 order is liable to be set aside as it is against the findings of this Court and contrary to the orders issued by the Government. Consequently, the Tribunal set aside Exhibit A18 order by which the claim of regularisation raised by the original applicant was rejected. 12. It is the common ground that the original applicant has been in continuous uninterrupted service with effect from 16.6.2003 and that the sweeping area of the office premises in question exceeded 100 sq. mtrs. 13. 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. O.P.(KAT) No.329/2020 9 14. 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.(P) 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. It has also been directed in the G.O. dated 25.11.2005 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 judgments dated 18.6.2004 of this Court referred to as item No.10 of the G.O.(P). dated 25.11.2005, whichever is later. 15. In the present case, there is no dispute that the original applicant had been engaged in a sweeper post concerned prior to the cut off date of 25.11.2005 and that the sweeping area in which she was engaged exceeded 100 sq. mtrs. 16. Similar or identical issue has already been considered by a Division Bench of this Court as per the the common judgment O.P.(KAT) No.329/2020 10 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 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 O.P.(KAT) No.329/2020 11 judgments of this Court, cannot be taken way by subsequent executive orders, etc. 17. We are of the firm view that the Tribunal had not committed any illegality or impropriety in rendering the impugned Exhibit P4 final order. The resultant conclusion is that the impugned Exhibit P4 order passed by the Tribunal requires no interference at the hands of this Court in exercise of the powers of judicial review and superintendence. However, taking note of the fact that the impugned order had been rendered by the Tribunal on 27.2.2019, it is ordered that the directions rendered by the Tribunal in favour of the original applicant shall be complied with by the petitioners/official respondents in the O.A. within a time limit of six weeks from the date of receipt of a 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.329/2020 12 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE O.A.(EKM)NO.1332/2015 ALONG WITH ANNEXURES.** - **ANNEXURE A1 TRUE COPY OF THE GO(P)NO.501/2005/FIN DATED 25.11.2005.** - **ANNEXURE A2 TRUE COPY OF THAT LETTER DATED 28.02.2006 OF THE 2ND PETITIONER.** - **ANNEXURE A3 TRUE COPY OF THE APPLICATION DATED 30.03.2007 ALONG WITH THE CERTIFICATE OF ASSISTANT ENGINEER,P.W.D.** - **ANNEXURE A4 TRUE COPY OF THE RESOLUTION DATED 18.04.2007 OF THE DISTRICT PANCHAYATH,KOTTAYAM.** - **ANNEXURE A5 TRUE COPY OF THE GO(ORD.)NO.2289/2009/LSGD DATED 8.09.2009 PASSED BY THE 1ST PETITIONER.** - **ANNEXURE A6 TRUE COPY OF THE JUDGMENT DATED 23.10.2009 IN WP(C)NO.29960/2009.** - **ANNEXURE A7 TRUE COPY OF GO(RT)NO.206/2010/LSGD DATED 19.01.2010 ISSUED BY THE 1ST PETITIONER.** - **ANNEXURE A8 TRUE COPY OF THE CIRCULAR NO.23/2010/FIN DATED 2.03.2010 ISSUED BY THE SECRETARY TO GOVERNMENT (FINANCE EXPENDITURE).** - **ANNEXURE A9 TRUE COPY OF LETTER NO.2902/ESTT.C4/CRD DATED 30.06.2010 SUBMITTED BY THE 2ND PETITIONER TO THE 1ST PETITIONER.** - **ANNEXURE A10 TRUE COPY OF THE REPRESENTATION DATED 25.11.2013 SUBMITTED BY THE 1ST RESPONDENT TO THE HON'BLE CHIEF MINISTER.** O.P.(KAT) No.329/2020 13 - **ANNEXURE A11** - **TRUE COPY OF THE LETTER NO.25815/ESST.D4/13/CRD DATED 20.12.2013 SENT BY THE 2ND PETITIONER TO THE 3RD PETITIONER.** - **ANNEXURE A12 TRUE COPY OF THE LETTER NO.A17701/2003/PAU DATED 22.01.2014 SENT BY THE 3RD PETITIONER ALONG WITH ANNEXURES.** - **ANNEXURE A13 TRUE COPY OF THE GO(MS)NO.199/2007/LSGD DATED 16.08.2007 ISSUED BY THE 1ST PETITIONER.** - **ANNEXURE A14 TRUE COPY OF THE JUDGMENT DATED 24.03.2009 IN WP(C)NO.9444/2009.** - **ANNEXURE A15 TRUE COPY OF ORDER DATED 10.03.2014 IN T.A.NO.4862 OF 2012 PASSED BY THE TRIBUNAL.** - **ANNEXURE A16 TRUE COPY OF GO(MS)NO.70/2006/LSGD DATED 1.03.2006 ISSUED BY THE 1ST PETITIONER.** - **ANNEXURE A17 TRUE COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 29.01.2015 IN OA NO.2406/2014.** - **ANNEXURE A18 TRUE COPY OF GO(RT)NO.1824/2015/LSGD DATED 18.06.2015 ISSUED BY THE 1ST PETITIONER.** - **EXHIBIT P2 TRUE COPY OF REPLY STATEMENT FILED ON 25.11.2016 BY THE FIRST PETITIONER ALONG WITH ANNEXURE HEREIN IN THE ORIGINAL APPLICATION. ANNEXURE (R1(a))TRUE COPY OF GO(P)NO.61/2010/FIN DATED 09.02.2010.** - **EXHIBIT P3 TRUE COPY OF REJOINDER FILED ON 20.07.2018 BY THE 1ST RESPONDENT TO THE REPLY STATEMENT OF THE 1ST PETITIONER ALONG WITH ANNEXURES HEREIN IN THE ORIGINAL APPLICATION.** O.P.(KAT) No.329/2020 14 **DRDA DATED 21.07.2008 SENT BY THE SECRETARY, GOVERNMENT OF INDIA,MINISTRY OF RURAL DEVELOPMENT TO THE CHIEF SECRETARY,GOVERNMENT OF KERALA.** **ANNEXURE A20 TRUE COPY OF LETTER DATED 13.06.2008 SENT BY THE MINISTER OF RURAL DEVELOPMENT,GOVERNMENT OF INDIA TO ALL CHIEF MINISTERS.** **ANNEXURE A21 TRUE COPY OF THE EXTRACT OF THE GUIDELINES ON DRDA ADMINISTRATION.** **EXHIBIT P4 TRUE COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 27.02.2019 IN THE AFORESAID ORIGINAL APPLICATION.**