IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 WA.No. 1047 of 2008() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.12960/2007 .................... APPELLANT/ PETITIONER ------------------------------------- RAJESH KUMAR P.V., S/O.RAMAN KUTTY, PART-TIME SWEEPER, VETERINARY HOSPITAL, KATTIPPARA, THAMARASSERY, KOZHIKODE. BY ADV. SRI.P.NARAYANAN RESPONDENTS/ RESPONDENTS ---------------------------------------------- 1. THE DIRECTOR, DEPARTMENT OF ANIMAL HUSBANDRY, TRIVANDRUM. 2. THE DISTRICT ANIMAL HUSBANDRY OFFICER, KOZHIKODE. 3. VETERINARY SURGEON, VETERINARY HOSPITAL KATTIPPARA, THAMARASSERY, KOZHIKODE. BY GOVERNMENT PLEADER BENNY GERVACIS - R1 TO R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== W.A.No.1047 of 2008 ===================== Dated this the 7th day of July, 2008. JUDGMENT Ravindran,J. The petitioner in W.P.(C)No.12960 of 2007 is the appellant. By judgment delivered on 30.1.2008, the learned Single judge dismissed the Writ Petition. Hence, this Writ Appeal. 2. The appellant was appointed as a Casual Sweeper in the Veterinary Hospital, Kattipara with effect from 1.1.2004. The sweeping area of the Veterinary Dispensary, Kattipara is 100.49 sq.mtrs. Prior to the engagement of the appellant, one Mr.Murali was engaged as Casual Sweeper for the period from 1.7.2003 to 31.8.2003. The appellant claims regularisation in service as Part-time Sweeper relying on G.O.(P) 501/2005/Fin dated 25.11.2005 and payment of arrears of salary in terms of the said government order. 3. By G.O.(P) 390/2003/Fin dated 17.7.2003, the State Government ordered that Part-time contingent post of Sweepers may be created in offices where the area to be swept/cleaned is 100 sq. mtrs. and above and such posts shall be filled up with candidates WA No.1047/08 -: 2 :- recruited through the Employment Exchange only. It was further ordered that in the case of newly opened offices where a sanctioned post of Part-time Sweeper/Cleaner exists, those casual labourers posted against such posts in the absence of employment hands may be paid Rs.1500+DA or Rs.1250+DA as the case may be and such posting and payment may be done for a period of less than 6 months or till an employment candidate joins the post, whichever is earlier. The government further directed that such candidates should not be regularised on any account. 4. The appellant was engaged as Casual Sweeper on 1.1.2004. Before the appellant was engaged, the State Government had issued G.O.(P)500/2000/Fin. dated 25.9.2003 keeping in abeyance the operation of G.O.(P)390/2003/Fin. dated 17.7.2003. Thereby, the restriction on recruitment otherwise than through the Employment Exchanges ceased to operate. At that point of time, the appointment of Casual Sweepers was the subject matter of W.A.No.1863 of 2004 and connected cases. Pursuant to the directions issued by a Division Bench of this Court, the State Government issued G.O.(P) 501/2005/Fin dated 25.11.2005. Paragraph 8 of the said order reads as follows: "For the regularisation of the existing casual sweepers (where the seeping area exceeds 100 sq. WA No.1047/08 -: 3 :- 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 Government 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 Department in Government shall then issue orders before 21.1.2006, in consultation with the Finance Department, 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 D.A. p.m. (for area of 400 sq. mtrs. and above but below 800 sq. mtrs.). The posts shall be WA No.1047/08 -: 4 :- 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 reference (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 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 appellant filed the Writ Petition contending that notwithstanding the existence of a sanctioned post and his entitlement for regularisation, steps have not been taken to regularise him in service. The respondents resisted the Writ Petition contending that as the writ petitioner was not in service on 17.7.2003, he is not entitled to regularisation. By the impugned judgment, the learned Single Judge accepted the said contention and dismissed the Writ Petition holding that as the writ petitioner was not in service on 17.7.2003, he is not entitled to the benefit of G.O.(P)501/2005/Fin dated 25.11.2005. 6. We have heard Sri. P.Narayanan, the learned counsel WA No.1047/08 -: 5 :- appearing for the appellant and Sri.Benny Gervasis, the learned Government Pleader appearing for the respondents. 7. The answer to the question raised in this Writ Appeal lies in paragraph 8 of G.O.(P)501/2005/Fin dated 25.11.2005, which we have extracted above. It is clear from the stipulations in paragraph 8 of the said government order that the intention of the government is to regularise the services of existing Casual Sweepers where the sweeping area exceeds 100 sq. mtrs. The said government order also directs that where the sweeping area exceeds 100 sq. mtrs but below 400 sq. mtrs, the Casual Sweeper shall be paid a remuneration of Rs.1250 + D.A. per month and where the area is above 400 sq. mtrs but below 800 sq. mtrs., a remuneration of Rs.1500 + D.A. per month shall be paid. The State Government also directed that the post of Part-time Sweeper 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 in W.P.(C)No.30927 of 2003 and other cases) whichever is later. As regards the cases covered by the earlier judgments of this Court directing regularisation, the relevant date for regularisation of the incumbent is a date 3 years preceding the date of such judgment ordering regularisation or the date of appointment whichever is later. It is further stated that the WA No.1047/08 -: 6 :- absorption/regularisation shall be done with effect from this date only and that arrears of remuneration shall be paid only with effect from the date of regularisation. Applying the stipulations in paragraph 8 of the above government order to the case on hand, the appellant is, in our opinion, entitled to succeed. 8. It is not in dispute that the appellant was engaged as a Casual Sweeper in the Veterinary Hospital, Kattipara with effect from 1.1.2004. The only ground on which the appellant's claim for regularisation was contested was that he was not in service as a Casual Sweeper on 17.7.2003. The contention of the respondents is that G.O.(P)501/2005/Fin dated 25.11.2005 applies only to Casual Sweepers in service on 17.7.2003. In our considered opinion, the said stand of the respondents is plainly untenable. Paragraph 8 of the government order dated 25.11.2005 clearly states that existing Casual Sweepers are entitled for regularisation with effect from the date of their appointment as Casual Sweeper or from 18.6.2001 whichever is later. As per paragraph 8 of the government order dated 25.11.2005, regularisation will take effect from that date and the person regularised will be entitled to payment of arrears and emoluments with effect from the date of regularisation. In the instant case, the appellant was first engaged as Casual Sweeper on 1.1.2004. Ext.P1 WA No.1047/08 -: 7 :- clarifies the said position. The respondents also admit that the appellant was engaged as Casual Sweeper with effect from 1.1.2004. When the government order dated 25.11.2005 was issued, the appellant was in service as a Casual Sweeper in the Veterinary Hospital, Kattipara. In view of G.O.(P)500/2003/Fin dated 25.9.2003, the stipulation in G.O.(P)390/2003/Fin dated 17.7.2003 that the post of Casual Sweeper should be filled up only by candidates recruited through the Employment Exchanges, ceased to operate with effect from 25.9.2003. The appellant was engaged as Casual Sweeper only on 1.1.2004, after G.O.(P)390/2003/Fin dated 17.7.2003 ceased to operate. Therefore, the respondents are not entitled to contend relying on the government order dated 17.7.2003 that the appellant is not entitled for regularisation. The government order dated 25.11.2005 does not expressly stipulate that only Casual Sweepers who were in service as on 17.7.2003 are entitled for regularisation. On the other hand, the government order dated 25.11.2005 contemplates regularisation of existing Casual Sweepers meaning thereby those who were in service as on 25.11.2005. Such Casual Sweepers are entitled for regularisation either from the date of their appointment as Casual Sweeper or from 18.6.2001 whichever is later. The appellant who satisfies the stipulations in the government order WA No.1047/08 -: 8 :- dated 25.11.2005 is therefore entitled for regularisation with effect from 1.1.2004. Though the respondents have a case that in view of paragraph 10 of the government order dated 25.11.2005 the appellant would be entitled for regularisation only after obtaining specific orders of the government, on a reading of paragraph 10, we find that there is no merit in the said contention. Paragraph 10 of the government order dated 25.11.2005 contemplates a situation where the service of an existing Casual Sweepers was terminated following the government order dated 17.7.2003 (wrongly stated as 19.7.2003) and fresh hands were selected and appointed through the Employment Exchanges. Such is not the situation in the case on hand. 9. In the instant case, the respondents have no case that the service of any Casual Sweeper was terminated following the government order dated 17.7.2003 and that the appellant was selected and appointed through the Employment Exchange thereafter. On the other hand, Ext.P1 discloses that after the service of Mr.Murali was terminated on 31.8.2003, the appellant was engaged only on 1.1.2004. The respondents have no case that Mr.Murali has sought regularisation and that he is also a claimant for the same post. We also notice that the regularisation contemplated in paragraph 8 of the government order dated 25.11.2005 is regularisation of existing WA No.1047/08 -: 9 :- Casual Sweepers. If Mr.Murali was not in service when the government order dated 25.11.2005 was issued, we fail to understand how he can be an "existing Casual Sweeper" entitled for regularisation. 10. For the reasons stated above, we declare that the appellant is entitled for regularisation with effect from 1.1.2004, the date of his initial appointment as Casual Sweeper. We direct the respondents to issue orders regularising the services of the appellant as Part-time contingent Sweeper in the Veterinary Hospital, Kattipara with effect from 1.1.2004 and to pay him emoluments in terms of G.O.(P) 501/2005/Fin dated 25.11.2005. Orders in this regard shall be passed within one month and the arrears of emoluments shall be paid within one month thereafter. The Writ Appeal is allowed as above. No costs. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 15/7