IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 WP(C).No. 35058 of 2010(F) ---------------------------------- PETITIONER(S): ----------------- CHELLATHAI, PART TIME SWEEPAER, P.H.SUB DIVISION, KERALA WATER AUTHORITY, PAINAVU, IDUKKI DISTRICT. BY ADV. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN RESPONDENT(S): ------------------- 1. THE KERALA WATER AUTHORITY REPRESETED BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM-33. 2. THE EXECUTIVE ENGINEER, PH DIVISION, KERALA WATER AUTHORITY, THODUPUZHA, IDUKKI DISTRICT-685584. 3. THE ASSISTANT EXECUTIVE ENGINNER, PH SUB DIVISION, KERALA WATER AUTHORITY, PAINAVU IDUKKI DISTRICT-685584. ADV. SMT AMBIKADEVI, SC B/O SMT.AMBIKA DEVI, SC, KWA FOR RESPONDENTS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH W.P.(C)NO.5972/2011 ON 07/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ---------------------------------------------- W.P.(C) Nos.35058/10 & 5972 OF 2011 ------------------------------------------------ Dated this the 7th day of April, 2011 JUDGMENT The petitioners in these two writ petitions are Part time Sweepers working in the Kerala Water Authority. The petitioner in W.P.(C)No.35058/10 has been working as such for 26 years and more. The petitioner in the other writ petition has been working as such since October 1993. They have filed these writ petitions seeking regularisation in service in accordance with G.O. (P)No.501/2005/Fin. dated 25.11.2005, which Government Order was issued in compliance with the directions of this Court in several cases particularly, W.A.No.1863/2004 and connected cases. In W.P.(C) No.35058/08 I passed several interim orders which are self explanatory. The orders dated 17.12.2010, 14.1.2011, 20.1.2011, 1.2.2011, 16.2.2011, 4.3.2011 and 21.3.2011 are extracted hereinbelow: Order on 17.12.2010 is as follows: “The Standing Counsel for the Water Authority shall get instructions as to why while passing P8 W.P.(C)No.35058/10 & Con.case 2 order pursuant to directions from this court no reasons whatsoever as to why the petitioner's claim for regularisation has been rejected, has been given therein.” Order on 14.1.2011 is as follows: “The learned Standing Counsel for the Water Authority submits that after perusing the file, the Standing Counsel gave an advice to the Water Authority that going by the records it is only appropriate that the petitioner be regularised in service particularly in view of the fact that no reasons are forthcoming for not regularising the services of the petitioner. But, the learned Standing Counsel has been directed to return the file to the legal cell so as to engage another counsel”. Order on 20.1.2011 is as follows: “It is submitted by the learned counsel for the petitioner that, it is understood that the file has been handed over to another standing counsel for the Water Authority, Smt. Ambika Devi. Show the name of Smt. Ambika Devi in the cause list.” Order on 1.2.2011 is as follows: “Standing counsel for the Water Authority seeks two more weeks' time to get instructions from the Managing Director regarding what has transposed in this writ petition.” Order on 16.2.2011 is as follows: “The learned standing counsel for the Water Authority submits before me that the case of the petitioner is being placed before the Board for reconsideration in the light of the legal advice received by the Water Authority.” Order on 4.3.2011 is as follows: “The learned Standing Counsel for the Water Authority submits that the matter was considered by the last Board Meeting and the W.P.(C)No.35058/10 & Con.case 3 Board has directed the Managing Director to place the matter before the next Board Meeting. I am not all satisfied with the conduct of the Board of Directors. This question has been hanging fire for more than three months now. However, I grant two more weeks' time to take a final decision, failing which, the matter wold be heard and disposed of after two weeks.” Order on 21.3.2011 is as follows: “I.A.No.4981/2011 has been filed by the Water Authority seeking time till 31/3/2010 for taking a decision in respect of the regularisation of the petitioner.” In accordance with the said orders, it is now submitted that the Water Authority has by Ext.R1(b) addressed the Government seeking permission to create posts of Part Time Sweepers so as to regularise the services of the Part Time Sweepers presently in service. The stand taken by the Water Authority now is that unless the Government creates the posts, the Water Authority cannot, under law, create the posts and regularise the persons, who are presently working as Part Time Sweepers. 2. I have considered the rival contentions in detail. As far as the petitioners in these two writ petitions are concerned, admittedly they are being engaged to sweep offices of the Water Authority for quite some time. They have been so W.P.(C)No.35058/10 & Con.case 4 engaged from much prior to 25.11.2005, which is the date of G.O.(P)No.501/2005. The learned Standing Counsel for the Water Authority is unable to tell me definitely whether the Water Authority has adopted the Government Order. But it is not disputed before me that several orders have been passed by the Water Authority granting the benefit of that Government Order to other similarly placed Part Time Sweepers. That being so it is clear that the Water Authority is following that Government Order for Part Time Sweepers of Water Authority also. 3. The next question is as to whether the Water Authority is bound to seek prior approval of the Government for creation of posts in accordance with the Government Order. The learned counsel for the petitioners would argue that the Water Authority is a statutory autonomous body and for creation of the lower-most posts in that authority, it is not necessary to get prior sanction of the Government or even post - facto sanction. According to them, insofar as the Water Authority is an autonomous body, they have to implement the Government Order mutatis mutandis, in the sense that W.P.(C)No.35058/10 & Con.case 5 wherever the word 'Government' occurs in that Government Order the same should be read as 'Water Authority'. 4. I am inclined to agree with the learned counsel for the petitioners. As I have already indicated, in Water Authority there are offices, which requires to be swept every day, the petitioners are being engaged to sweep the offices for a quite long time, at any rate, prior to the date of the Government Order and therefore, they are the existing Sweepers as contemplated by the Government Order and if the area of sweeping in the offices, where the petitioners are working, is 100 square meters or more, they are entitled to the benefit of regularisation under the said Government Order. For ordering such regularisation, I am of opinion that the Water Authority does not require to seek permission from the Government. In fact, in Ext.R1(b) produced by the Water Authority, they themselves have categorically admitted that they had already created posts and regularised other Part Time Sweepers working in those posts. The stand now taken is that, that is an illegality which is now sought to be corrected. I do not think that it is an illegality because for creating the lower- W.P.(C)No.35058/10 & Con.case 6 most posts of Part Time Sweepers in the Water Authority, the Water Authority need not seek permission from the Government to create the posts or to regularise services of temporary Sweepers working. I had specifically asked the learned Standing Counsel as to whether there is any provision anywhere in the Statutes or Rules relating to the Water Authority, which is an autonomous body, which contemplates prior permission from the Government to create posts of Part Time Sweepers. The learned Standing Counsel could not point out any provision of law which enjoins the Water Authority to seek prior permission from the Government to create posts of Part time Sweepers. In the above circumstances, I am of opinion that it is for the Water Authority themselves to implement the Government Order in its right spirit. Since the Water Authority is an autonomous body, necessarily the word 'Government' in G.O.(P)No.501/2005 wherever it occurs should be read substituted by the words 'Water Authority', insofar as the Water Authority is to implement the Government Order mutatis mutandis. In the above circumstances, I am of opinion that it is the Water Authority, who has to implement W.P.(C)No.35058/10 & Con.case 7 the same, for which no reference to the Government is necessary. Accordingly, this writ petition is disposed of with the following directions: i) Insofar as the petitioner in W.P.(C)No.35058/10 is concerned, the Water Authority has already taken a decision to recommend the case of the petitioner to the Government for her regularisation in service, since they are satisfied that the petitioner in that writ petition comes squarely within the purview of the Government Order. Accordingly, in W.P.(C) No.35058/10, I direct the respondents to implement the Government Order by creating a post of Part Time Sweeper and regularising the services of the petitioner in that writ petition in that post in accordance with the said Government Order without having to get permission from the Government in that regard. ii) As far as the petitioner in W.P.(C)No.5972/11 is concerned, the Water Autority shall cause to be measured the sweeping area in the office where the petitioner has been engaged and if the sweeping area is 100 square meters or more, the Water Authority shall implement the Government W.P.(C)No.35058/10 & Con.case 8 Order No.501/2005 in the case of the petitioner in W.P.(C) No.5972/11 also as in the case of the petitioner in the other writ petition. iii) Orders in this regard in both the cases shall be passed, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE acd W.P.(C)No.35058/10 & Con.case 9 W.P.(C)No.35058/10 & Con.case 10