T. N. Leela v. State of Kerala and others

O.P.(KAT) No. 325 of 2018 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 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942** **OP(KAT).No.325 OF 2018** **AGAINST THE ORDER DT.27.7.2018 IN OA 661/2018 OF KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER/APPLICANT IN OA:** **T. N. LEELA, AGED 52 YEARS W/O RAJENDRAN, PART-TIME CASUAL SWEEPER, ICDP SUB CENTRE, KOTTATHALA P.O., KOLLAM DISTRICT (PRESENTLY OUT OF EMPLOYMENT) RESDING AT NIRAPPIL VADAKKETHIL, KOTTATHALA P.O., KOLLAM DISTRICT.** **BY ADVS. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SRI.ARUN BOSE** ## **RESPONDENTS/RESPONDENTS IN OA:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF ANIMAL HUSBANDRY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2 THE DIRECTOR OF ANIMAL HUSBANDRY, DIRECTORATE OF ANIMAL HUSBANDRY, VIKAS BHAVAN, THIRUVANANTHAPURAM-695033.** O.P.(KAT) No. 325 of 2018 2 - **3 DISTRICT ANIMAL HUSBANDRY OFFICER, DISTRICT ANIMAL HUSBANDRY OFFICE, CIVIL STATION, KOLLAM, KOLLAM-691013.** - **4 THE VETERINARY SURGEON, VETERINARY HOSPITAL, THEVALAPPURAM P.O., PUTHOOR, KOLLAM DISTRICT-691507.** - **5 THE LIVE STOCK INSPECTOR, ICDP SUB CENTRE, KOTTATHALA P.O., KOLLAM DISTRICT-691507.** - **6 KANAKALATHA,** **PART-TIME SWEEPER (TEMPORARILY APPOINTED THROUGH KUDUMBASREE), ICDP SUB CENTRE, KOTTATHALA P.O., KOLLAM DISTRICT-691507.** **R1 TO R5 BY SR. GOVERNMENT PLEADER SRI B.VINOD** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) No. 325 of 2018 3 ## **ALEXANDER THOMAS & T.R. RAVI, JJ. -----------------------------------------------O.P.(KAT) No. 325 of 2018** [ _Arising out of order dated 27.07.2018 in O.A(Ekm) No.661 of 2018 of KAT, Ekm. Bench_ ] **--------------------------------------------------** ## **Dated this the 1[st] day of February, 2021** ## **JUDGMENT** ## **T.R. RAVI, J.** The original petition has been filed by the applicant before the Tribunal challenging the order dated 27.7.2018 in O.A.(Ekm) No.661 of 2018, on the file of the Kerala Administrative Tribunal, Ernakulam Bench (hereinafter referred to as the Tribunal), whereby the Tribunal dismissed the application. The respondents before the Tribunal are the respondents herein. 2. The petitioner claims that she was being engaged as a casual sweeper from June 2007 onwards and was in continuous service till 2017 but that she was not permitted to rejoin thereafter. The original application has been filed praying for a direction that she should be permitted to rejoin duty and allowed to continue till she attains superannuation. The benefit of the Government order G.O. O.P.(KAT) No. 325 of 2018 4 (P)No.501/2005/Fin. dated 25.11.2005 is also claimed. The respondents contended that going by paragraph 13 of the 2005 Government order, after the issuance of the order, part-time sweepers could have been appointed only through the Employment Exchange and in case of delay in making such appointments, persons can be engaged through local Kudumbasree units. It is hence contended that the petitioner cannot claim any right to rejoin duty. It is also contended that the purpose of the Government order dated 25.11.2005 was to protect the existing casual sweepers who were being engaged and the same will not apply in the case of the petitioner who was admittedly engaged only in June, 2007. The claim was rejected by the Tribunal finding that the Government order dated 2005 will not apply. Aggrieved by the order of the Tribunal, the petitioner has approached this Court. 3. Pursuant to directions issued by a learned Single Judge of this Court in its judgment in **Mercy v. State of Kerala** reported in [2004 (2) KLT 848], confirmed by a Division Bench in its judgment dated 12.08.2005 in **State of Kerala and others v. M.M.Mercy and others (W.A.No.1863 of 2004 and connected cases)** , the State Government had issued GO(P) No.501/2005/Fin. dated O.P.(KAT) No. 325 of 2018 5 25.11.2005, introducing a scheme to govern the cases of regularisation of existing eligible casual sweepers and 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. The Government thereafter issued G.O. (P)No.61/2010/Fin. dated 09.02.2010 modifying the earlier order dated 25.11.2005. It was ordered that all existing sweepers other than casual sweepers, irrespective of the mode of appointment, shall also be entitled for regularisation based on the sweeping area, provided that O.P.(KAT) No. 325 of 2018 6 their appointments were made on or before the issuance of the Government order dated 25.11.2005. A reading of the above Government order will clearly show that the same is not intended to apply in cases like that of the petitioner. The counsel for the petitioner relies on Annexure A3 Circular No.98/10/Fin dated 19.11.2010, to claim that she is entitled to continue in service. A reading of Annexure A3 will show that the same does not in any manner create a right to be regularised in service. At the same time it clarifies that the intention of the Government while issuing the Government orders dated 25.11.2005 and 09.02.2010 was not to terminate the services of the existing sweepers but with regard to future appointments only. The respondents have a case that the said order applies only in the case of persons engaged on or before 09.02.2010 and that it will not apply in the case of the petitioner. They even have a contention that the petitioner was not engaged even in 2007. We find that the claim of the petitioner on the basis of Annexure A3 Circular has not been considered by any of the authorities and also by the Tribunal. We are hence of the considered opinion that interests of justice will be served, if the original petition is disposed of granting permission to the petitioner to submit a representation before the Government, regarding O.P.(KAT) No. 325 of 2018 7 her claim based on Annexure A3, which the respondents will consider and dispose of after affording a hearing to the petitioner. 4. The original petition is hence disposed of directing the petitioner to prefer a representation before the 1[st] respondent, regarding her claim on the basis of Annexure A3. On receipt of such representation, the 1[st] respondent shall consider the same and pass necessary orders, after hearing the petitioner, within a period of two months thereof. The findings of the Tribunal regarding the right of the petitioner for regularisation based on G.O.(P)No.501/2005/Fin dated 25.11.2005 stands confirmed. However, the above confirmation shall not stand in the way of the Government to grant the benefit of regularisation if the petitioner is otherwise entitled to. The parties will bear their respective costs. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn O.P.(KAT) No. 325 of 2018 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **EXHIBIT P1** **TRUE COPY OF THE MEMORANDUM OF O.A.(EKM) NO.661/2018 ON THE FILES OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM (CAMP SITTING AT ERNAKULAM)WITH ANNEXURES A1 TO A3** **ANNEXURE A1: TRUE COPY OF GO(P)No.501/2005/FIN. DT.25.11.2005 ISSUED BY THE GOVERNMENT.** - **ANNEXURE A2: TRUE COPY OF go(p)nO.61/2010/FIN. DT.9.2.10 ISSUED BY THE GOVERNMENT.** **ANNEXURE A3: TRUE COPY OF CIRCULAR No.98/2010/FIN. DT.19.11.2010.** **EXHIBIT P2** - **TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT IN O.A. (EKM) NO.661/2018 BEFORE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM (CAMP SITTING AT ERNAKULAM)** **EXHIBIT P3** **TRUE COPY OF THE ORDER DATED 27.7.2018 IN O.A.(EKM) NO.661/2018 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM (CAMP SITTING AT ERNAKULAM)**