IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 WP(C).No. 12053 of 2006(I) -------------------------------------- PETITIONER: ------------------- S.SAROJINI, PART-TIME SWEEPER, OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, HARBOUR ENGINEERING SUB DIVISION, THANKASSERY, KOLLAM DISTRICT. BY ADV.MR.M.V.THAMBAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER, DEPARTMENT OF HARBOUR ENGINEERING, THIRUVANANTHAPURAM. 3. ASSISTANT EXECUTIVE ENGINEER, HARBOUR ENGINEERING SUB DIVISION, THANKASSERY, KOLLAM. 4. ASSISTANT ENGINEER, HARBOUR ENGINEERING SECTION, THANKASSERY, KOLLAM. 5. DISTRICT COLLECTOR, KOLLAM. *ADDL.R6 & R7 IS IMPLEADED: 6. ALPHONSA, W/O. WILFRED, THOPPIL PURAYIDOM, FISHERMEN COLONY.NO.35, KAIKULANGARA WEST, KOLLAM. W.P.(C). NO.12053/2006: 7. WILFRED, S/O. WILLIAM, THOPPIL PURAYIDOM, FISHERMEN COLONY, NO.35, KAIKULANGARA WEST, KOLLAM. *ARE IMPLEADED AS ADDL.R6 & R7 AS PER ORDER DTD. 30/06/06 IN I.A. 8784/06. R1 TO R5 BY GOVT. PLEADER MR. ARAVINDAKUMAR BABU T.K, ADDL.R6 & R7 BY ADV.MR.C.RAJENDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2009,ALONG WITH W.P.(C). NO. 19052 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.12053/2006-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT DT. 18/06/2004 IN W.P.(C).NO.30927/2003. EXT.P.2: COPY OF THE JUDT. DT. 12/08/2005 IN W.A. NO. 1863/2004. EXT.P.3: COPY OF THE G.O.NO.(P).NO.501/2005/FIN. DT. 25/11/2005. EXT.P.4: COPY OF THE PETITION BEFORE THE DISTRICT COLLECTOR DT. 31/03/2006. EXT.P.5: COPY OF THE CERTIFICATE FROM THE COMMUNITY DEVELOPMENT SOCIETY. EXT.P.6: COPY OF THE LETTER NO.E1-18345/2006 DT. 31/03/2006 FROM DISTRICT COLLECTOR TO THE R.3. EXT.P.7: COPY OF THE INTERIM ORDER DT. 17/03/2005 IN W.P.(C).NO.8888/2005. EXT.P.8: COPY OF THE LETTER NO. EI/609/08/EE DT. 27/01/2009. EXT.P.9: COPY OF THE LETTER NO.EI/609/08/EE DT. 21/02/2009. RESPONDENTS' EXHIBITS: EXT.R2: LABOUR ROLL AND RECEIPT VOUCHERS FOR THE PERIODS FROM 1992 TO 2002. EXT.R2.A: COPY OF THE LABOUR ROLL OF THE PART TIME SWEEPERS ENGAGED DURING MAY 1991 TO 1992. EXT.R2.B: COPY OF THE HAND RECEIPTS (PAYMENTS) MADE FROM MARCH 1992 TO MARCH 2006 IN RESPECT OF THE PART-TIME SWEEPERS ENGAGED IN THE OFFICE OF THE R.3. //TRUE COPY// P.S. TO JUDGE. Prv. V.K.MOHANAN, J. ---------------------------------------- WP.C. Nos.12053 & 19052 of 2006 ---------------------------------------- Dated, the 23rd day of July, 2009 JUDGMENT Petitioners in both these writ petitions are part- time sweepers. The subject matter of the above two writ petitions is the conflicting claim for regularization of their services as regular part-time sweepers in the light of Government order, i.e., G.O. (P) No.501/2005/Fin. dated, Thiruvanahtapuram, 25th November, 2005. As the claim of the petitioners in both the above writ petitions is with respect to the post in the office of the Assistant Executive Engineer, Harbour Engineering Sub Division, Thankassery, Kollam, and the parties are same these writ petitions are heard together and being disposed of by this common judgment. 2. The petitioner in WPC No. 12053/2006 is the 6th respondent in WPC No.19052/2006. 3. The claim of the petitioner in WPC 12053/2006 is that she was continuously working as part-time WPC 12053 & 19052/06 -:2:- Sweeper in the office of Respondents 3 and 4, right from June, 2004 on fixed remuneration of Rs.600/-. Her further claim is that she is entitled to get the benefit of the G.O. (P) No.501/2005/Fin. dt. 25.11.2005 referred above which produced in this writ petition as Ext.P3. According to her, pursuant to Ext.P3 G.O., area was measured and as evidenced by Exts.P8 and P9, proposal was sent for regularisation of her service. But so far no order is issued by the official respondents. It is also the case of the petitioner that initially, she was working in the Land Tribunal, Kollam, right from 1998 till 2002. When the office of the Land Tribunal Kollam, ceased to exist, she made representation before the District Collector, Kollam pursuant to which she was appointed in the office of respondents 3 and 4. Thus, according to the petitioner, she is entitled to get the benefit of Ext.P3 Government order and proposal was also forwarded to the Government, but no order is issued. Therefore, she approached this Court with a prayer to issue a writ of mandamus or other WPC 12053 & 19052/06 -:3:- writ or order directing the respondents to pay the regular scale of pay as applicable to regular part-time sweepers to the petitioner, i.e., Rs.1500/- plus D.A. (Pre-revised), June, 2004 onwards and with subsequent revisions and to regularize her with arrears as provided for in Ext.P3 G.O. There are also certain other prayers connected and incidental to therewith. 4. WPC 19052/2006 is preferred with a prayer to issue a writ of mandamus or ay other writ order or direction compelling and commanding the respondent Nos.1 and 4 to re-engage the petitioners as part-time sweepers with the regular scale of pay, i.e. Rs.1500/- plus D.A. (Pre-revised), June, 2004 onwards and with subsequent revisions and to regularize the service of the petitioners with arrears as provided for in Ext.P1 G.O. It is also sought for a declaration that the petitioners alone are entitled to get the benefit of Ext.P1 government Order and regularization of service. The fourth prayer is to issue a writ of mandamus or any other writ, order or WPC 12053 & 19052/06 -:4:- direction compelling and commanding the respondents Nos.1 and 4 not to permit the 6th respondent to do the work of part-time sweepers. According to the petitioners, the first petitioner was working as part-time Sweeper in the buildings under the control of the Assistant Executive Engineer and Assistant Engineer, Harbour Engineering Section, Thankassery, Kollam. She was working there, right from 1991, and she is residing close to the said office building. According to the averments, the Assistant Engineer engaged the Ist petitioner to do the sweeping work in the said buildings, and initially, she was being paid Rs.100/- per month. It is also stated that one Ignatius was also engaged for doing the sweeping works in those office buildings and the said Ignatius worked there only for one year. According to her, after three years, the salary of the Ist petitioner was raised upto Rs.110/- and the 2nd petitioner was also engaged by the then Assistant Engineer for doing the sweeping and cleaning work there from 1994 onwards and he was paid Rs.110/- WPC 12053 & 19052/06 -:5:- per month. The salary of the petitioner were increased by Rs.600/- per month. Thus, they were getting the salary for 6 years. According to the petitioners, in July 2002, the first petitioner became sick and she had to undergo a lengthy treatment for back pain and in all joints of her body. So the 2nd petitioner was doing the sweeping in all the office buildings. According to the petitioners, the 4th respondent herein denied the work to the 2nd petitioner and engaged the 6th respondent from 1.8.2004 onwards and thereafter, the 6th respondent had also been told not to do the work from March, 2005. The 6th respondent is the petitioner in the former writ petition. 5. I have heard the learned counsels appearing for the petitioners in both the writ petitions and also the learned Government Pleader. 6. Two counter affidavits are seen filed in O.P.No.19052/2006. One is filed by one Unnikrishnan, Executive Engineer, Harbour Engineering Division, Kollam. Actually, that is a copy of the counter affidavit filed in WPC 12053 & 19052/06 -:6:- W.P.C. 12053/2006 and produced in WPC 19052/2006. Besides the above counter affidavit, the Under Secretary to Government, Fisheries and Ports Department, Government Secretariat, filed another counter affidaivt for and on behalf of the Ist respondent, in which it is stated that the Ist petitioner was engaged only as a daily waged labourer and she had not been given any fixed remuneration at the rate of 600/- per month. The first petitioner was disengaged from the job based on the instruction of the Division Office vide Ext.R2, and the 2nd petitioner was engaged as casual sweeper on fixed monthly remuneration for the period from 8/2002 to 5/2004. It is also stated that the second petitioner was actively engaged in fishing work as he owned a fishing boat, and he could not able to attend the office in time to do the job regularly and properly. It is after warnings, he was removed from the job from 6/2004. 7. From 1.8.2004, the 6th respondent was engaged regularly as casual sweeper on fixed remuneration at the WPC 12053 & 19052/06 -:7:- rate of Rs.600/- per month and she is now doing only the sweeping job. In paragraph 5 of the counter affidavit, it is specifically stated that the first petitioner was engaged only as a daily waged sweeper (Woman mazdoor) with effect from 3/1992 to 7/2002 intermittently and the 2nd petitioner was engaged as casual sweeper on fixed monthly remuneration for the above area with effect from 8/2002 to 5/2004 only and he was disengaged from the job from 1.6.2004 due to his own fault before the date of Ext. P1 Government Order. From 1.8.2004, the 6th respondent was engaged regularly as casual sweeper on the fixed remuneration at the rate of Rs.600/- per month and continuing as such on the strength of interim orders of this Court. Hence the Ist and 2nd petitioner are not entitled to be regularized as part time contingent sweepers in terms of Ext.P1. In paragraph 7, it is specifically stated that the only claimant who was working as casual sweeper on the date of issue of Ext.P1 Government Order is the 6th respondent, who is continuing WPC 12053 & 19052/06 -:8:- as such on the strength of the interim orders of this Court is eligible to be regularized as part-time contingent sweeper for the sweeping and cleaning of the area mentioned above. 8. According to the counsel for the petitioner in O.P.19052/2006, prior to the appointment of 6th respondent, the first petitioner was working there and she is entitled to get regularized her work on the strength of the above G.O. By inviting my attention to Clause 10 of the above G.O., it is submitted that if there is any conflicting claim , the government has to take a decision. It is also argued by the counsel for the petitioner that in order to implement the above G.O., firstly a post has to be created and the area has to be measured for the persons/claimants and thereby regularization has to be made. 9. On the other hand, the learned Counsel for the petitioner in WPC. 12053/2006 submitted that, on the date of the G.O., the petitioner was working in the above post WPC 12053 & 19052/06 -:9:- and as discernible from paragraph 8 of the G.O., the benefit of the above G.O., will be extended only to existing casual sweepers at that time. Thus, on the date of the G.O., the petitioner Sarojini was engaged and she was working as casual sweeper under respondents 3 and 4. It is also pointed out that the petitioners in the other writ petition were not disengaged on the basis of the G.O.dated 19.7.2003 and therefore their claim cannot be considered while implementing the G.O. mentioned above. The learned counsel for the petitioners in the other case submitted that the petitioner in the present case was appointed through Employment Exchange and therefore, she cannot claim regularization on the strength of the G.O in question. 10. However, it is to be noted that the petitioners in W.P.19052/2006 have not approached the Government appraising the claim of regularisation of their service. According to the petitioner in WPC 12053/2006, for the regularization of her service, though proposal was given WPC 12053 & 19052/06 -:10:- to the Government, no order was issued and therefore she prayed to issue a writ of mandamus directing the Government to pay the regular scale of pay to the petitioner. As the claim of the petitioners in both the writ petitions is with respect to the regularization of sweeping work concerned with the office of respondents 3 and 4, I am of the view that without going into the merits of the case, the Ist respondent government can be directed to consider the rival claims of the petitioners and to have a decision on merit. 11. In the result, these writ petitions are disposed of directing the Ist respondent to consider the claim of the petitioners for regularization of their service as sweepers in the office of respondents 3 and 4 and to take a decision on merit after affording opportunity of being heard to the petitioners, who are directed to file detailed representations, setting forth their claim before the Ist respondent, within one moth from today and they are further directed to produce a copy of this judgment along WPC 12053 & 19052/06 -:11:- with such representations and the Ist respondent is directed to dispose of such representations within three months from the date of receipt of a copy of this judgment and the representations, as in the manner indicated above. The interim order in O.P.No.12053/2006 will be continued till the disposal of the matter as such. The writ petitions are disposed of as above. V.K.MOHANAN, JUDGE kvm/- WPC 12053 & 19052/06 -:12:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..