V.R. Premalatha v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 13TH DAY OF JUNE 2018 / 23RD JYAISHTA, 1940 WP(C).No. 22426 of 2014** ## **PETITIONER** **V.R.PREMALATHA, AGED 46 YEARS, W/O.GOPALAKRISHNAN, PART-TIME SWEEPER, KODUMON GRAMA PANCHAYAT, KODUMON P.O., PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SRI.ARUN BOSE** ## **RESPONDENTS:-:** **1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF PANCHAYAT, DIRECTORATE OF PANCHAYAT, DIRECTORATE OF PANCHAYAT, THIRUVANANTHAPURAM - 695 001.** **3. THE DEPUTY DIRECTOR OF PANCHAYAT, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT, PATHANAMTHITTA DISTRICT - 689 645.** **4. THE KODUMON GRAMA PANCHAYAT, KODUMON, KODUMON P.O., PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS SECRETARY, PIN - 691 555.** **5. THE SECRETARY, KODUMON GRAMA PANCHAYAT, KODUMON, KODUMON P.O., PATHANAMTHITTA DISTRICT - 691 555.** **R1 -R3 BY SR GOVERNMENT PLEADER SRI. SAIGI JACOB PALATTY R4 & R5 BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-06-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/27.06.18** ## **WP(C).No. 22426 of 2014 (C)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1. TRUE COPY OF THE GO(P)NO.501/2005/FIN. DATED 25.11.2005.** **EXHIBIT P2. TRUE COPY OF THE ORDER NO.C1-35/05 DATED 28.10.2006 ISSUED BY THE 5TH RESPONDENT.** **EXHIBIT P3. TRUE COPY OF THE JUDGMENT DATED 26.11.08 IN EP(C)NO.2005/2005.** **EXHIBIT P4. TRUE COPY OF THE REPRESENTATION DATED 01.01.09 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXHIBIT P5. TRUE COPY OF THE G.O.(RT)NO.3009/10/LSGD DATED 13.09.2010.** **EXHIBIT P6. TRUE COPY OF THE G.O.(P)NO.61/2010/FIN. DATED 09.02.2010.** **EXHIBIT P7. TRUE COPY OF THE JUDGMENT DATED 14.01.2009 BEFORE THIS HONOURABLE COURT.** **EXHIBIT P8. TRUE COPY OF THE JUDGMENT DATED 07.07.2010 BEFORE THE DIVISION BENCH OF THIS HONOURABLE COURT.** **EXHIBIT P9. TRUE COPY OF THE JUDGMENT DATED 28/10/10 CCC.NO.828/2010 BEFORE THIS HONOURABLE COURT.** - **EXHIBIT P10. TRUE COPY OF THE LETTER NO.E3-2403/2007 DATED 15.12.2011 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P11. TRUE LETTER NO.C4.4175/11 DATED 20.01.2012 ISSUED BY THE 5TH RESPONDENT.** **EXHIBIT P12. TRUE COPY OF THE LETTER NO. 6438/H2/06/LSGD DT 06.05.2006 ISSUED BY THE GOVERNMENT** **EXHIBIT P13. TRUE COPY OF THE CIRCULAR NO. E2-10032/04 DT. 10.01.2000 ISSUED BY THE DEPUTY DIRECTOR OF PANCHAYAT, KOLLAM** ## **RESPONDENTS EXHIBITS NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/-** **27.06.18** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 22426 of 2014 ================== Dated this the 13[th] day of June, 2018 **J U D G M E N T** The prayers in the above Writ Petition (Civil) filed on 19.8.2014 are as follows: _“(i). to issue declarations as follows:-_ - _(a) that the petitioner is entitled to regularisation as regular Part-Time Sweeper from 18.06.2001 and consequential benefits like PF, Leave as per the Rules and opening of Service Book._ - _(b) that portion of Ext.P6 Government Order confining the regularization of sweepers working on daily wages only from 9.2.2010 and denying the regularization from 18.06.2001 or from the date of actual engagement, which ever is later, are arbitrary and violate of Exhibit P7 judgment, Ext.P1 Government Order and also against the directions in Mercy Vs. State reported in 2004(2)KLT 848 and the Division Bench judgment dated 12.8.2005 in W.A.186/2004 and connected cases and hence such portion of Exhibit P6 Government order confining the regularization of sweepers working on daily wages from 09.02.2010 is violative of Article 14 and 21 of the Constitution of India._ - _(c) to issue a further declaration that the petitioner is entitled to regularization as part-time sweeper with regular scale of pay from 18.06.2001 onwards as the sweeping area of her office is above 100 Sq Mtrs._ - _(ii) to issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading up to Exhibit P11 and quash that part of Exhibit P5 and P6 Government Orders confining regularization of the petitioner w.e.f 09.02.2010 instead of 18.06.2001 on the ground that she is working on daily wages and also to quash the recovery notice Exhibits P10 and P11._ - _(iii). to issue a writ of mandamus or other writ or order or direction, directing the respondents to regularize the petitioner as regular Parttime Sweeper from 18.06.2001, with all consequential benefits._ - _(iv). to issue such other further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of this case.”_ 2. Heard Sri.M.V.Thamban, learned counsel appearing for the writ petitioner, Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for official respondents 1 to 3 and Sri.A.R.Dileep learned counsel W.P.(C).22426/14 - : 2 :- appearing for R-4 and R-5 (Kodumon Grama Panchayat). 3. The short question that arises for consideration in this case is as to whether the petitioner, who had earlier worked as casual daily waged sweeper in the 4[th] respondent Grama Panchayat, wherein the sweeping area was admittedly more than the ceiling limit of 400 sq.m., is entitled for the benefit of regularisation of part time sweeper with effect from 18.6.2001 in terms of Ext.P-1 G.O(P).No. 501/2005/Fin dated 25.11.2005. The incidental question that arises in that regard is as to whether or not the petitioner is only entitled for the benefit of regularization with effect from 9.2.2010 on the basis of Ext.P-6 G.O(P). No.61/2010/Fin. dated 9.2.2010 as contended by official respondents 1 to 3. 4. The facts are not in serious dispute in this case. The petitioner was engaged as a part time sweeper on daily wage basis, in the service of the 4[th] respondent Kodumon Grama Panchayat with effect from 4.12.1998. There is also no dispute that the sweeping area in respect of the office of that Panchayat is 469.13 sq.m. as certified by the competent authority concerned, viz., the Assistant Executive Engineer, Public Works Department, Building Sub Division, Adoor. The petitioner claimed the benefit of regularization as part time sweeper in the contingent establishment of the respondent Grama Panchayat. In that regard she had also filed a Writ Petition (Civil) as W.P.(C).No.2005/2005 before this Court. It appears that during the pendency of the said W.P.(C) before this Court, the 4[th] respondent Grama Panchayat had issued Ext.P-2 proceedings dated W.P.(C).22426/14 - : 3 :- 28.10.2006 ordering that the petitioner will be given the benefit of regularization in service as part time sweeper with effect from 9.5.2005 with a remuneration of Rs. 2500 + D.A., etc. When the abovesaid Writ Petition came up for final hearing before this Court, this Court took note of the subsequent developments in the matter especially the issuance of G.O(P).No. 501/2005/Fin. Dated 25.11.2005 on the basis of which casual sweepers working in Grama Panchayats were given the benefit of regularization in service as part time sweeper subject to the conditions laid down therein. Accordingly this Court had finally disposed of W.P.(C).No. 2005/2005 as per Ext.P-3 judgment rendered on 26.11.2008 taking note of the said intervening developments like Ext.P-5 herein and ordering that the petitioner should approach the 3[rd] respondent therein (Deputy Director of Panchayats, Pathanamthitta) for redressal of the pending grievances in the light of the abovesaid G.O dated 25.11.2005 and that the said authority shall take appropriate action in accordance with law and in the light of the abovesaid G.O., within two months. It is also specifically directed in Ext.P-3 judgment that, while taking action as above, the eligibility of the petitioner for additional remuneration based on pay scale applicable to her shall also be considered and admissible arrears shall be disbursed to her within two months, etc. 5. Pursuant to Ext.P-3 judgment the petitioner had taken up her grievance before the 3[rd] respondent Deputy Director of Panchayats, Pathanamthitta, as evident from Ext.P-4 representation dated 1.1.2009 and W.P.(C).22426/14 - : 4 :- the matter was referred by the said authority before the 1[st] respondent State Government. The 1[st] respondent Government as per Ext.P-5 G.O(Rt.)No. 3009/10/LSGD dated 30.9.2010 had ordered that the petitioner is not entitled for the benefit of Ext.P-1 G.O dated 25.11.2005 inasmuch as she is only a daily waged casual sweeper and that such personnel working as daily wage casual sweepers in Panchayats are eligible for the benefit of regularization only with effect from 9.2.2010 on the basis of Ext.P-6 G.O(Rt.)No. 61/2010/Fin dated 9.2.2010. Subsequent to the issuance of Ext.P-5 G.O dated 13.9.2010, the 3[rd] respondent Deputy Director of Panchayats had issued Ext.P-10 order dated 15.12.2011 directing the 5[th] respondent that as the petitioner is entitled for the benefit of the regularisation only with effect from 9.2.2010, the earlier proceedings issued by the respondent Panchayat as per Ext.P-2 dated 28.10.2006 granting the benefit of regularisation to the petitioner with effect from 9.5.2005 is wrong and that therefore, recovery should be effected from her respect of the alleged excess pay received by her for the period from 9.5.2005 upto 9.2.2010. Pursuant to the directions issued in Ext.P-10 dated 15.12.2011, the 5[th] respondent Secretary of the 4[th] respondent Grama Panchayat has issued the impugned Ext.P-11 proceedings dated 20.1.2012 consequentially issuing orders for recovery as stated herein above. The petitioner urges that the impugned orders are liable to be interfered with inasmuch as the petitioner is entitled for the benefit of regularisation as part time sweeper in the service of the 4[th] respondent Grama Panchayat with effect from W.P.(C).22426/14 - : 5 :- 18.6.2001, on the basis of Ext.P-1 G.O dated 25.11.2005. 6. In that regard it is also relevant to note some of the background facts which led to the issuance of Ext.P-1 G.O dated 25.11.2005. A learned Single Judge of this Court had passed a considered judgment in respect of the claims of the some of the part time sweepers working in various grama Panchayats, in the judgment in the case in Mercy v. State of Kerala (judgment dated 18.6.2004 in W.P.(C).No. 30927/2003) reported in 2004 (2) KLT 848, which has been referred to as item No.10 in Ext.P-1 G.O. Thereafter the matter was taken up as intra-court appeal as W.A.No. 1863/2004. Taking note of the abovesaid judicial directives, the 1[st] respondent Government of Kerala had then issued Ext.P-1 G.O(P).No. 501/2005/Fin. dated 25.11.2005. It will be profitable to refer to paras 8 and 11 of the abovesaid G.O., which read as follows: _“8. For the regularization of the existing casual sweepers (where the sweeping area exceeds 100 sq.mtrs.), creation of posts of part-time contingent employees depending on the sweeping area has to be made. The sweeping area will be calculated in accordance with the guidelines given in the Appendix. As far as regularisation of existing casual sweepers are concerned, the measurement will be made by the PWD official after notice to the incumbent casual sweeper and in his presence. The incumbent casual sweeper will also sign in the format at Annexure either agreeing with the measurement or disagreeing with it. This exercise will be completed in all cases by 15.12.2005. If, on fixation, the area is seen to exceed 100 sq. mtrs. and if there is no post of part time sweeper sanctioned for the office in question, but there is a casual sweeper being engaged, the Head of the Office shall immediately take up with the Govt. for creation of a post of part-time contingent sweeper. Copies of the certificate of the PWD Engineer and full details of the case in the proforma in the Annexure shall be furnished along with the proposal. The Administrative Dept. in Govt. shall then issue orders before 21.1.2006, in consultation with the Finance Dept., for the creation of the post of part-time sweeper in relaxation of the economy orders and absorbing the existing casual sweeper by giving the remuneration of Rs.1250 plus DA p.m (for area of 100 sq.mtrs. and above but below 400 sq.mtrs.) and Rs.1500 plus DA p.m. (for area of 400 sq.mtrs and above but below 800 sq.mtrs). The posts shall be created with effect from the date of appointment of the incumbent as Casual Sweeper or from 18.6.2001 [i.e. 3 years preceding the date of judgement vide ref.(10) above] whichever is later. In the case of those covered by earlier orders of the High Court (for_ W.P.(C).22426/14 - : 6 :- _regularisation) the relevant date shall be the date of appointment of the incumbent as Casual Sweeper or the date 3 years preceding the date of such judgement ordering regularisation, whichever is later. The absorption/regularization shall be done with effect from this date only. Back arrears shall be payable only with effect from this date of regularisation. The period spent prior to regularisation shall not count for any purpose._ **==> picture [158 x 6] intentionally omitted <==** _11. The guidelines at Appendix shall also be applied to offices which already have part-time contingent sweepers. If, consequent to the re-fixation of the area in such offices in accordance with the guidelines, the sweeping area increases from below 400 mtrs. to above 400 mtrs. the part-time sweeper concerned shall be entitled to the higher remuneration of Rs. 1500 plus DA, but with effect from the date of the Government order only. If the area reduces from above 400 mtrs. to below 400 mtrs. the remuneration of the particular parttime sweeper shall not be reduced from Rs.1500 plus DA. The existing incumbent shall continue to get what he was getting. But the employee posted against the next vacancy should be given wages as per the rules. If, on fixation, the sweeping area reduces from above 100 sq.mtrs. to below 100 sq.mtrs. the - remuneration of the existing part time sweeper, if he is getting Rs.1250 p.m.plus DA, shall not be reduced. He shall continue to get what he was getting. Here also, the next vacancy in the post should be filled up by a casual sweeper only, by paying Rs. 600 per month.”_ 7. A reading of para 8 of Ext.P-1 G.O would show that the benefit of regularization is conferred for existing casual sweepers where the sweeping area exceeds 1o0 sq.mtr. It has been inter alia ordered therein that posts shall be created with effect from the date of appointment of the incumbents as casual sweepers or from 18.6.2001 (3 years preceding the date of the judgment dated 18.6.2004 rendered by this Court in _**Mercy v. State of Kerala**_ [W.P.(C).No. 309274/2003 and connected cases], whichever is later, etc. In the claims of similar casual sweepers, who are engaged on daily wage basis, their claims were denied by the Departmental authorities including the Government and a similar case came up for consideration before this Court in W.P.(C).No. 1416/2008, in which Ext.P7 judgment was rendered on 14.6.2009 allowing the claim of that Writ Petitioner. In Ext.P-7 judgment, this Court had categorically held that the W.P.(C).22426/14 - : 7 :- benefit of Ext.P-1 G.O cannot be denied to the casual sweepers working on daily wage basis and that there is no distinction made in Ext.P-1 G.O making any differentiation as to casual sweepers working on monthly remuneration basis and casual sweepers working on daily wage basis. This Court had also taken note of the Government letter dated 6.5.2006 (produced as Ext.P-3 therein and Ext.P-12 herein) whereby the Government had categorically clarified that the benefit of Ext.P-1 G.O would be applicable to all casual sweepers including daily wage earners. Accordingly, this Court had held that the distinction that was sought to be made by the official respondents by placing reliance on the mode of payment of wages on daily basis, etc. is not correct and tenable in law and that there is no stipulation or restriction in Ext.P-1 herein. On that basis, this Court quashed the impugned rejection order therein and directed the 2[nd] respondent therein (Director of Panchayats) to forward application and other materials produced along with it, to the 1[st] respondent State therein, who was directed to take appropriate decision in the light of the abovesaid finding in the judgment. Thus this Court has categorically declared and ordered in Ext.P-7 judgment that the benefit of regularisation as per Ext.P1 G.O is applicable to casual sweepers working on daily wages basis, provided they fulfill the other terms and conditions of that G.O like sweeping area, etc. 8. The impact of Ext.P-6 G.O(P). dated 9.2.2010 as to whether the casual sweepers like the petitioner are entitled for the benefit of W.P.(C).22426/14 - : 8 :- regularisation with effect from 18.6.2001 on the basis of Ext.P-1 G.O or that they are entitled for such regularisation only with effect from 9.2.2010 on the basis of Ext.P-6 G.O, had come up for consideration before this Court Division Bench of this Court in W.A.No. 2199/2009 and connected appeals. The Division Bench of this Court as per Ext.P-8 judgment dated 7.7.2010 in W.A.No.2199/2009 and connected appeals filed by the Government, had dismissed those appeals and had categorically held in para 2 thereof that the benefit of Ext.P-1 G.O dated 25.11.2005, which was issued in pursuance of the judgment of this Court in the above referred matter, cannot be taken away by issuing another contra G.O in the nature of Ext.P-6 herein (G.O dated 9.2.2010). Therefore, the matter in issue is no longer res integra. Moreover, it is also to be borne in mind that para 8 of Ext.P-1 G.O makes it clear like the day light that the benefit is conferred on the casual sweepers. Ext.P-12 Government letter dated 6.5.2006 has also ordered that the benefit of that G.O would enure to casual sweepers including daily wage earners, provided they fulfill the other terms and conditions. 9. Many a time, casual sweepers would have been engaged only on daily wage basis. It could be that some of the Grama Panchayats in their discretion would have decided to engage casual sweepers on monthly remuneration basis. Merely because some of the grama Panchayats in their discretion have chosen to pay wages to such casual sweepers on the basis of monthly remuneration, will not by itself disentitle casual sweepers working on daily wage basis from the beneficial sweep and ambit of Ext.P-1 G.O. W.P.(C).22426/14 - : 9 :- Such a contention of the official respondent is plainly untenable and would certainly amount to hostile discrimination, which is admonished by the Constitution as per Arts.14 and 16 thereof. Moreover, none of the respondents has a case even remotely that the petitioner did not have continuous service and that her broken and intermittent services were not short, but rather long. That the petitioner has been appointed as casual sweeper in the 4[th] respondent Panchayat with effect from 4.12.1998. Merely because her wages have been paid on daily wage basis and not on monthly basis, would not be a good ground to deny the benefit of regularisation as envisaged in Ext.P-1 G.O. That aspect of the matter in issue is fully covered in favour of the petitioner by virtue of the judgment of this Court rendered as per Ext.P-7. The present contentions of the respondents are in patent contradiction to the clarifications issued by the respondent State Government in Ext.P-12 Govt. letter and are covered against the respondents as per Ext.P-7 judgment. 10. The impugned orders as per Ext.P-10 and P-11 are also illegal in view of the directions issued by the Apex Court in State of _**Punjab & Ors. v. Rafiq Masih (White Washer)**_ , reported in 2015 (4) SCC 334. Para 18 of the decision in _**White Washer's case**_ supra reads as follows (see SCC report): > _**'18.** It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:_ W.P.(C).22426/14 - : 10 :- _(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service)._ _(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery._ _(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued._ _(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post._ _(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.”_ 11. In this case, admittedly the petitioner is a part time sweeper, which is a post in the part time contingent establishment of the 4[th] respondent and which is even inferior in the hierarchy compared to Class IV post and therefore could be hit by the restriction impsoed in Clause (I) of para 18 of the judgment and would also be hit by other directives, more particularly clause (iii) of the said paragraph of the judgment. Moreover, the impugned orders at Ext.P-10 dated 15.12.2011 and Ext.P-11 dated 20.1.2011 are issued in respect of recovery of pay which has been paid to be petitioner since 9.5.2005, etc. 12. In the light of these aspects, it is only to be ordered and declared that the petitioner is entitled for the benefit of regularisation as part time sweeper in the service of the 4[th] respondent Grama Panchayat, with effect from 18.6.2001 as envisaged in Ext.P-1 G.O. and as clarified in Ext.P-2 Govt. letter and she is thus eligible and entitled for all admissible W.P.(C).22426/14 - : 11 :- consequential pay scale and monetary and other benefits flowing therefrom. The direction in Ext.P-2 order dated 28.10.2006 will stand modified accordingly. Consequentially, it is only to be ordered that the impugned proceedings at Ext.P-10 and P-11 will stand quashed. Accordingly, the matter will stand remitted to the 3[rd] respondent Deputy Director of Panchayats, Pathanamthitta who will pass necessary orders in the case of the petitioner, as directed herein above in the light of the findings and observations in this judgment and shall also be ensured that consequential admissible benefits should also be worked out and disbursed to the petitioner without much delay. The entire process in this regard should be completed by the 3[rd] respondent within a period of two months from the date of production of a certified copy of this judgment. Proceedings in that regard should be issued by the 3[rd] respondent Deputy Director of Panchayats within the said period of two months and those proceedings shall be communicated by the 3[rd] respondent to the 4[th] respondent Grama Panchayat. The competent authorities of respondents shall disburse the consequential and admissible benefits to the petitioner without much delay, preferably within a period of three months therefrom. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge