IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 WP(C).No. 36949 of 2007(W) --------------------------------------- PETITIONER(S): ------------------------ K.K.PANKAJAKSHI, PART TIME SWEEPER, VAZHAKULAM GRAMA PANCHAYATH, MARAMPILLY P.O., ALUVA. BY ADV. SMT.P.V.ASHA RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PANCHAYATH, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF PANCHAYATH, ERNAKULAM. 4. VAZHAKULAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, OFFICE OF THE VAZHAKULAM GRAMA PANCHAYATH, MARAMPILLY P.O., ALUVA. R1 TO R3 BY GOVT. PLEADER MR.P.NANDAKUMAR R4 BY ADV. DR.K.P.SATHEESAN, MR.K.K.GOPINATHAN NAIR, MR.M.R.JAYAPRASAD, MR.P.MOHANDAS (ERNAKULAM). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.36949/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RESOLUTION DTD. 30.3.1994 OF THE 3RD RESPONDENT. P2:- COPY OF THE DUPLICATE IDENTITY CARD ISSUED BY THE EMPLOYMENT EXCHANGE ON 26.12.1984. P3:- COPY OF THE IST PAGE OF SSLC BOOK OF PETITIONER. P4:- COPY OF THE RESOLUTION DTD. 1.10.96 OF THE 4TH RESPONDENT. P5:- COPY OF THE RESOLUTION DTD. 22.7.97 OF THE 4TH RESPONDENT. P6:- COPY OF THE RESOLUTION DTD. 3.7.99 OF THE 3RD RESPONDENT. P7:- COPY OF THE LETTER NO.E2-22862/03 DT. 4.8.04. OF THE 2ND RESPONDENT. P8:- COPY OF THE ORDER DTD. 13.9.04 IN WP. 26788/04. P9:- COPY OF THE GO(P) 501/2005/FIN DTD. 25.11.05. P10:- COPY OF THE GOVERNMENT LETTER DTD. 8.5.06. P11:- COPY OF THE RESOLUTION DTD. 27.1.06 OF THE PANCHAYATH ALONG WITH CERTIFICATE. P12:- COPY OF THE JUDGMENT DTD. 14.2.07 IN WPC. 26788/04. P13:- COPY OF THE REPRESENTATION DTD. 15.3.07 OF THE PETITIONER. P14:- COPY OF THE LETTER DTD. 19.3.07 OF THE PANCHAYATH. P15:- COPY OF THE G.O.(RT) NO.2201/2007/LSG DTD. 21.8.07. P16:- COPY OF THE GO(RT) N.3066/96/LAD DTD. 7.8.96. TRUE COPY P.A. TO JUDGE tss P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 36949 OF 2007 -------------------------- Dated this the 10th day of August, 2009 J U D G M E N T Heard Smt. P.V.Asha, the learned counsel appearing for the petitioner, Sri. P.Nandakumar, the learned Government Pleader appearing for respondents 1 to 3 and Dr.K.P.Satheesan, the learned counsel appearing for the fourth respondent. 2. The petitioner was appointed as Part-time Sweeper on daily wage basis on 2.4.1994 in the Vazhakulam Grama Panchayat pursuant to a resolution adopted by the Panchayat on 30.3.1994. At that point of time, the Government had not issued orders regulating the method of appointment of Part-time Sweepers in local authorities. Later, the Vazhakulam Grama Panchayat resolved to take steps to regularise the petitioner in service. While matter stood thus, the Director of Panchayats directed all local authorities to terminate the services of all persons engaged on daily wage basis in part-time posts and to make appointments through the Employment Exchange. The petitioner thereupon filed W.P. (C) No.26788 of 2004 in this Court. By Ext.P8 interim order passed on 13.9.2004, this Court directed the respondents to continue the petitioner in service as Part-time Sweeper. While matter stood thus, the Government issued G.O.(P) No.501/2005/Fin dated 25.11.2005 laying down the guidelines for regularisation of existing Casual Sweepers. The said W.P.(C) No. 36949/07 2 Government order provided that Casual Sweepers who are working in offices having a sweeping area exceeding 100 sq. metres are entitled to be regularised in service. The sweeping area of the establishment where the petitioner is engaged admittedly exceeds 100 sq. metres. Therefore, as the petitioner was entitled to be regularised in service, the committee of the Panchayat that met on 25.1.2006 resolved unanimously to request the Government to regularise her in service. A proposal in that regard was forwarded to the Government through the Deputy Director of Panchayats. In view of the said development, this Court disposed of W.P.(C) No. 26788 of 2004 with a direction to the respondents to examine the petitioner's case in the light of the Government order dated 25.11.2005. The Government, by Ext.P15 order dated 21.8.2007 rejected the petitioner's claim for regularisation holding that as she was appointed on daily wage basis, she is not entitled to regularisation. Ext.P15 is under challenge in this writ petition wherein the petitioner seeks a writ in the nature of mandamus commanding the respondents to regularise her in service. 3. The fact that the petitioner has been in service continuously since 1994 is not in dispute. The applicability of GO(P) No.501/2005/Fin dated 25.11.2005 to Casual Sweepers working in local authorities is also not in dispute. The pleadings disclose that the Panchayat has been consistently requesting the Government to regularise the petitioner in service. The fact that the sweeping area of the office where the petitioner is employed exceeds 100 sq. meters is also not disputed. The only ground W.P.(C) No. 36949/07 3 on which the petitioner has been denied regularisation is that she was engaged on daily wage basis. 4. In my opinion, the stand taken by the Government in Ext.P15 cannot be sustained. Para 8 of the Government order dated 25.11.2005 which deals with regularisation of Casual Sweepers reads as follows: “For the regularisation 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 D.A p.m. (for area of 100 sq. mtrs and above but below 400 sq. mtrs.) and Rs.1500 plus D.A. 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 judgment vide ref. (10) above) whichever is later. In the case of those covered by earlier orders of the High Court (for 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 W.P.(C) No. 36949/07 4 such judgment ordering regularisation, whichever is later. The absorption/regularisation 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.” 5. The aforesaid Government order was issued after a series of decisions were rendered by this Court regarding regularisation of Casual Sweepers. By the Government order dated 25.11.2005, the Government decided to regularise existing Casual Sweepers by creating a post of Part- time Contingent Sweeper, if the sweeping area exceeds 100 Sq.mtrs. By letter dated 8.5.2006, the Government had clarified that the Government order dated 25.11.2005 will apply to the Casual Sweepers employed in local authorities also. In my opinion, there is nothing in the Government order dated 25.11.2005 which justifies the stand of the Government that Casual Sweepers engaged on daily wage basis are not entitled to be regularised in service. The Government order dated 25.11.2005 does not contain any stipulation regarding the nature of engagement of the Casual Sweeper, whose service is sought to be regularised. As held by me in the judgment delivered in W.P.(C) No. 36179 of 2007 the emphasis in para 8 of the Government order dated 25.11.2005 is on the sweeping area and not on the nature of engagement of the Casual Sweeper. I am therefore of the considered opinion that the stand taken by the Government in Ext.P15 cannot be sustained. The petitioner had claimed regularisation with effect from 2.4.1994. On the terms of para 8 of the Government order dated W.P.(C) No. 36949/07 5 25.11.2005 that incumbent Casual Sweepers can be regularised only with effect from the date of their appointment or with effect from 18.6.2001, whichever is later, the petitioner can claim regularisation only with effect from 18.6.2001. Therefore, the petitioner will be entitled to arrears of emoluments only with effect from the date of such regularisation. In the result, I allow this writ petition, quash Ext.P15 and direct the Government to regularise the petitioner in service as Part-time Sweeper in the Vazhakulam Grama Panchayat with effect from 18.6.2001 with all attendant benefits. The petitioner shall be paid emoluments at the rate specified in GO(P) No.501/2005/Fin dated 25.11.2005 till the emoluments were revised and at the revised rates thereafter. Orders regularising the petitioner in service shall be issued within three months from the date on which the petitioner produces a certified copy of this judgment before the Secretary to Government, Local Self Government Department. Payment of arrears of emoluments shall be made within another two months thereafter. P.N.RAVINDRAN, JUDGE vps W.P.(C) No. 36949/07 6