IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 WP(C).No. 15076 of 2008(T) PETITIONER: --------------- SUJATHA K.N., D/O.NARAYANI, KANDADUKKAM VEEDU, CHAKKITTADUKKAM, ATTENGANAM P.O., KASARGOD DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH (HOMEO), SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HOMEO MEDICAL SERVICE THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER (HOMEO) KASARGOD. 4. LALITHA, PART TIME CASUAL SWEEPER BELUR GOVERNMENT HOMEO DISPENSARY KASARGOD. R4 BY ADV. SRI.JAWAHAR JOSE R1 TO R3 BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER DATED 12.3.2003. EXT.P2 TRUE COPY OF THE ORDER DATED 12.6.2003. EXT.P3 TRUE COPY OF THE ORDER DATED 16.9.2003. EXT.P4 TRUE COPY OF THE ORDER DATED 17.12.2003. EXT.P5 TRUE COPY OF THE ORDER DATED 18.6.2004. EXT.P6 TRUE COPY OF THE ORDER DATED 23.8.2004. EXT.P7 TRUE COPY OF THE ORDER DATED 25.10.2004. EXT.P8 TRUE COPY OF THE ORDER DATED 5.1.2005. EXT.P9 TRUE COPY OF THE REPRESENTATION DATED 20.2.2007 FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P10 TRUE COPY OF THE JUDGMENT DATED 28.3.2007 IN W.P.(C) NO.10801 OF 2007. EXT.P11 TRUE COPY OF G.O.(Rt) NO.3723/2007/H & FWD DATED 1.11.2007. EXT.P12 TRUE COPY OF G.O.(P0 NO.361/2005 DATED 2.8.2005. EXT.P13 TRUE COPY OF G.O.(P0 501/2005 DATED 25.11.2005. RESPONDENTS' EXHIBITS: EXT.R4(a) TRUE COPY OF THE ORDER APPOINTING THE FOURTH RESPONDENT AS SWEEPER. EXT.R4(b) TRUE COPY OF THE ORDER DATED 3.9.2002 APPOINTING PETITIONER FOR THE FIRST TIME. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 15076 OF 2008 T ------------------------------------------------------ Dated this the 22nd day of June, 2010 JUDGMENT The petitioner worked as a Part Time Casual Sweeper in Government Homeo Dispensary, Belure for various spells not exceeding 90 days from 5/9/2002 to 16/6/2004. Again for various spells not exceeding 60 days, she worked from 19/6/2004 to 7/5/2005 with intermittent breaks. She was getting a remuneration of Rs.1,250/- per month as a daily labourer. She was not engaged after 7/5/2005. The 4th respondent was appointed, as per Exhibit R4(a) appointment order dated 23/8/2005, as part time sweeper. She is at present working as part time sweeper. 2. There were various claims made by part time sweepers, who were engaged on daily wages, for regularisation. The Government used to pass various executive orders dealing with those representations. A batch of Writ Petitions filed by the part time sweepers were disposed of by this Court in Mercy Vs State of Kerala [2004(2) KLT 848]. Certain directions were issued to the Government in that judgment. Taking into account the directions in W.P.(C) NO.15076 OF 2008 :: 2 :: Mercy's case, the Government issued G.O(P) 361/2005/Fin. dated 2/8/2005 (Exhibit P12). In Exhibit P12 Government Order, depending on the sweeping area, directions were issued for appointing casual labourers and for appointing part time contingent employees. The Government Order also mentions about the remuneration and pay to be paid to such employees. There were cases where sweeping area was less than 100 Sq. mtrs. There were cases where the sweeping area were erroneously calculated, taking into account the area which did not come under the term sweeping area. The Government considered all those aspects. It is submitted by the learned counsel for the petitioner that there were cases where the sweeping area was fixed as less than 100 Sq.mtrs, while the sweeping area was more. In Paragraph 9 of Exhibit P12, it was provided thus. “If, on re-fixation of the area, it is found to be less than 100 sq. mtrs (requiring only a casual sweeper @ Rs.600 p.m.) and if there is a casual sweeper already working, he/she shall continue without disruption, getting only Rs.600 p.m.” 3. Mercy's case was taken up in appeal before the Division Bench. Certain interim orders were passed. The Government W.P.(C) NO.15076 OF 2008 :: 3 :: thereafter issued G.O(P) No. 501/2005/Fin. dated 25/11/2005 (Exhibit P13), wherein the reference was made to [2004(2) KLT 848] and the interim orders passed in W.A. No.1863/2004. In Exhibit P13, among other things, the following matters were also provided: “For sweeping area less than 100 Sq. mtrs., no part-time contingent post is to be created. The head of office concerned is authorised to engage a casual sweeper (not necessarily from Employment Exchange) by paying a fixed consolidated remuneration at Rs.600/- p.m.” ........ ........ ........ ........ “8. For the regularisation of the existing casual sweepers (where the sweeping area exceeds 100sq. 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 W.P.(C) NO.15076 OF 2008 :: 4 :: 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 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 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 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 such judgment ordering regularisation, whichever is later. The absorption/ regularisation shall be done with effect from this date W.P.(C) NO.15076 OF 2008 :: 5 :: 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. 9.If, on re-fixation of the area, it is found to be less than 100 sq. mtrs (requiring only a casual sweeper @ Rs.600 p.m.) and if there is a casual sweeper already working, he/she shall continue without disruption, getting only Rs.600 p.m. 10. There could be a few cases where the existing casual sweepers were terminated in accordance with the Government order of 19/7/2003 and new persons selected through Employment Exchange. There would then be 2 claimants for the same post. This would be decided on a case to case basis, if necessary, accommodating such persons in other offices. Such cases will also be reported to Government and absorption done only under the orders of the Government.” 4. The petitioner filed W.P(C) No. 10801 of 2007 complaining about the non-payment of wages to her as a part time sweeper and requesting for a direction to the Government to consider her representation. That Writ Petition was disposed of as per Exhibit P10 judgment dated 28/3/2007 directing the Government W.P.(C) NO.15076 OF 2008 :: 6 :: to consider the representation submitted by the petitioner. The Government considered the representation dated 20/2/2007 submitted by the petitioner, in which, she had also prayed for re- appointment and re-engagement of her service. The Government considered the matter in detail. Reports were called for from the concerned. The request made by the petitioner for re-appointment or re-engagement was rejected by the Government. The relevant portion of the Government order (Exhibit P11) reads as follows: “As per the letters read as 4th, 5th and 7th papers above, the Director of Homeopathy, Thiruvananthapuram has reported to Government that there is a sanctioned post of Part-time Sweeper in Government Homoeo Hospital, Belur vide G.O.(MS) No.88/1992/H&FWD dated 22/6/1992. The District Medical Officer (Homoeo), Kasaragod in his letter read as 4th paper above has reported that the petitioner in the instant WP(C) had worked in the said dispensary with intermittent breaks of service for various spells not exceeding 90 days from 5/9/2002 to 16/6/2004 and then for the various spells not exceeding 60 days from 19/6/2004 to 7/5/2005, that too with intermittent breaks at a consolidated remuneration of Rs.1250/- per month. The Director of Homeopathy, Thiruvananthapuram has further reported to Government that the sweeping area of the Government Homoeo W.P.(C) NO.15076 OF 2008 :: 7 :: Dispensary, Belur has been got measured as per the guidelines contained in G.O(P) No.501/2005/Fin. dated 25/11/2005 by the Assistant Engineer, Buildings Section, Public Works Department, Kasaragod and found that the sweeping area is only 71.25 M2. The Director of Homeopathy has reported that the Casual Sweepers are eligible to be regularised in institutions only where the sweeping area exceeds 100M2 as per the guidelines contained in G.O.(P) No.501/2005/Fin. dated 25/11/2005. Government have examined the matter in detail with reference to the relevant Government Orders and records. It has been stipulated in 501/2005/Fin. dated 25/11/2005 that for regularising the existing Casual Sweepers, the minimum sweeping area as per the guidelines contained in the above G.O. should be more than 100M2. As per the certificate issued by the Assistant Engineer, Building Section, Public Works Department, Kasaragod and furnished by the District Medical Officer (Homoeo), Kasaragod, the sweeping area of Government Homoeo Dispensary, Belur is only 71.25 M2. The post of the Sweeper in the above dispensary is liable to be abolished as per the instructions contained in Para 11 of the above G.O. due to this. In the circumstances the request of the W.P.(C) NO.15076 OF 2008 :: 8 :: petitioner, Smt. Sujatha K.N., in WP(C) No.10801/2007 for re-appointment and regularisation in the Sweeper post in Government Homoeo Dispensary, Belur does not merit consideration. Hence her request contained in Exhibit P9 representation read as 1st paper above is rejected, thereby complying with the directions of the Hon'ble High Court contained in the judgment read as 2nd paper above.” 5. It is not in dispute that the petitioner was appointed as casual part time sweeper for various periods which did not exceed 90 days at a time. The petitioner has a case that she continued to work till 7/5/2005 (as mentioned in Exhibit P9) and 1/9/2005 (Paragraph (1) of the Writ Petition). However, there is no material to show that she had worked at any time after 7/5/2005. The 4th respondent was appointed as per Exhibit R4(a) dated 23/8/2005. The case of the petitioner that she worked till 1/9/2005 cannot be accepted, since by that time the 4th respondent was appointed. 6. The learned counsel appearing for the petitioner submitted that the decision in Mercy Vs State of Kerala [2004(2) KLT 848] applies and therefore, the petitioner is entitled to be regularised. W.P.(C) NO.15076 OF 2008 :: 9 :: On a perusal of the decision in Mercy's case, I do not think that the petitioner would be entitled to challenge Exhibit P11 order on the basis of the dictum laid down in Mercy's case. The learned counsel for the 4th respondent submitted that the petitioner is not entitled to challenge the appointment of the 4th respondent. 7. The learned counsel for the petitioner submitted that the petitioner has a case that the sweeping area is more than 100 Sq. Mtrs. and that was why the 4th respondent was appointed on an advice from the Employment Exchange. The contention of the petitioner is that as mentioned in paragraph (10) of Exhibit P13 Government Order (G.O.P No. 501/2005 dated 25/11/2005) the petitioner could be accommodated in some other offices, after considering her grievances. It is also submitted that in Exhibit P11 order, that aspect of the matter was not considered. 8. In the facts and circumstances of the case, I do not think that Exhibit P11 order is liable to be interfered with in the Writ Petition under Article 226 of the Constitution of India. The prayer of the petitioner to accommodate her in the same dispensary was rightly rejected as per Exhibit P11 order. However, the question is W.P.(C) NO.15076 OF 2008 :: 10 :: whether the petitioner was entitled to be accommodated in any other office as provided in paragraph (10) of G.O. (P) No. 501/2005 dated 25/11/2005 (Exhibit P13). Therefore, it is necessary to direct the first respondent to consider the case of the petitioner touching upon her claim on the basis of paragraph (10) of G.O. (P) No. 501/2005 ( Exhibit P13) afresh. Accordingly there will be such a direction. The petitioner would be free to make a detailed representation pointing out all the relevant facts. She would also be free to submit other documents which are relevant. It is made clear that the appointment of the 4th respondent in no circumstances would be affected by the consideration of the matter by the Government as mentioned above. It is also not necessary for the Government to issue notice to the 4th respondent. The Government shall consider the aforesaid contention within a period of three months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the Writ Petition along with exhibits and copies of counter affidavits before the first respondent along with a certified copy of the judgment. The Writ Petition is disposed of as above. (K.T.SANKARAN) Judge scm/ahz