IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 WP(C).No. 34509 of 2008(G) --------------------------------------- PETITIONER(S): -------------------- VINOD K.U., S/O.UNNIKRISHNAN, PART TIME CASUAL SWEEPER PAMPADUMPARA VILLAGE OFFICE,KALLAR P.O. IDUKKI DISTRICT 685 552. BY ADV. MR.KALEESWARAM RAJ RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, IDUKKI 3. TAHSILDAR UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 4. SURESHKUMAR K.N S/O.NARAYANAN K.K. BLOCK NO.482, MUNDIYERUMA PO, IDUKKI DT 5. RAMADEVI P.R. C/O.RAMAN PILLAI, POTTANKUNNEL VEEDU UPPUTHODU P.O.,GOURI CITY, IDUKKI DIST. 6. MARYKUTTY THOMAS C/O.THOMAS, KURUVANTHANATHU VEEDU KADAMAKKUZHI P.O., KATTAPPANA, IDUKKI DT. 7. K.U.ANTO C/O.K.U.ULAHANNAN,KANNUVELIL VEEDU ELAPPARA P.O.,IDUKKI DT-685 501. R5 TO R7 BY ADVS. MR.K.S.HARIHARAPUTHRAN, MR.GEORGE MATHEW R4 BY ADV. MR.A.C.DEVASIA R1 TO R3 BY GOVERNMENT PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2009, ALONG WITH WPC NO. 34511 OF 2008 WPC NO. 34542 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.34509/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE JUDGMENT IN WP(C) NO.17466/03. P2:- COPY OF THE LETTER DT. 6.2.06 ISSUED BY THE ASSISTANT ENGINEER P.W.D. BUILDINGS SECTION, NEDUMKANDAM TOGETHER WITH CERTIFICATE, CALCULATION STATEMENT AND PLAN ADDRESSED TO THE ILLAGE OFFICER, PAMBADUMPARA VILLAGE OFFICE. P3:- COPY OF THE ORDER NO.A6/40586/08 DT. 18.11.08 ISSUED BY THE 2ND RESPONDENT. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.34509, 34511 & 34542 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of January, 2009. JUDGMENT These three writ petitions concern challenge against Ext.P3 order by whereby newly selected persons have been appointed in the place of the petitioners. They are seeking for a direction to the Government to pass appropriate orders regularising them in service. 2. In Writ Petition No.34509/2008 the petitioner is working as a Part- time Sweeper in the office of Pampadumpara Village Office, Idukki District, since the year 2001. The sweeping area covered by the petitioner is 107.71 sq. ms. which is evidenced by Ext.P2 certificate. He had filed an earlier writ petition, viz. W.P.(C) No.17466/2003 wherein directions have been issued in the matter of payment of salary, etc. According to the petitioner, he is entitled for regularisation as per the directions issued in G.O.(P) No.501/2005/Fin. Dated 25.11.2005 and even if regularisation is not granted, he is entitled to get pay protection as per the said order. Therefore, he cannot be replaced by a fresh hand. 3. In Writ Petition No.34511/2008 the petitioner is working as a Part- Wpc 34509, 34511 & 34542/2008 2 time Sweeper in the office of Konnathadi Village Office, Idukki District. Ext.P1 is the judgment in Writ Petition No.2309/2003 wherein certain reliefs have been granted in favour of the petitioner. She is working as a Part-time Sweeper since 1999. The sweeping area covered by the petitioner is evidenced by Ext.P2 which shows that the same is 102.67 sq. ms. It is stated that she is entitled for regularisation in terms of G.O.(P) No.501/2005/Fin. Dated 25.11.2005. As per Ext.P3, the District Collector has sponsored the names of three candidates for appointment who have been sponsored by the Employment Exchange. The persons sought to be appointed have been impleaded as respondents 4 to 7 in this writ petition. 4. In Writ Petition No.34542/2008 the petitioner is working as a Part- time Sweeper in Vandanmedu Village Office, Idukki District. She is working in the said post since 2001 and the sweeping area covered by the petitioner is 114.46 sq.ms. Ext.P1 is the judgment in an earlier writ petition filed by the petitioner, viz. Writ Petition No.22852/2003 which was disposed of in his her favour. She is also seeking regularisation in terms of the relevant Govt. Order. 5. Heard learned counsel for the petitioner, learned Govt. Pleader and learned counsel appearing for the party respondents. Wpc 34509, 34511 & 34542/2008 3 6. Interim orders have been passed in these three writ petitions to retain the petitioners in the present stations and therefore the contesting respondents have not been engaged pursuant to Ext.P3. 7. Learned counsel for the petitioner submitted that the petitioners are covered by the scheme framed by the Government as per G.O.(P) NO.501/2005/Fin. Dated 25.11.2005. As per the said order, the Government have comprehensive scheme for regularistion of Part-time sweepers. This was pursuant to the directions issued by this court in W.A. No.1863/2004 and connected cases. The Government cancelled G.O. Dated 2.8.2005 and revised orders have been passed as per G.O. Dated 25.11.2005. Going by para 8 of the said order, “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. ........... 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 Wpc 34509, 34511 & 34542/2008 4 Rs.1250 plus DA per month ( for area of 100 sq. mtrs. and above but below 400 sq. metrs) and Rs.1500 plus DA per month (for area of 400 sq. metrs. and above but below 800 sq. metrs). The posts shall be created with effect from the date of appointment of the incumbent as Casual Sweeper or from 18.6.2001 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.” It is therefore pointed out that the creation of the post of Part-time contingent sweeper has to be done on the basis of the above guidelines and the existing incumbents are entitled for regularisation. Therefore, Ext.P3 order issued by the District Collector in so far as it affects the right of the petitioners, cannot be upheld. 8. In the counter affidavit filed by the contesting respondents, the stand taken is that they have been appointed through a proper selection process. 9. In these cases, the petitioners have produced the judgments rendered by this court in cases where they were parties earlier. Pursuant to the adoption of revised norms as per Govt. Order dated 25.11.2005, the Wpc 34509, 34511 & 34542/2008 5 sweeping area has been assessed and all the required details have been forwarded for their regularisation. The steps for regularisation have to be taken by the respective authorities and by the Government. In the counter affidavit filed in W.P.(C) No.34542/2008, it is admitted in para 4 that the proposal for the same has been submitted to the Land Revenue Commissioner by letter dated 7.2.2007. 10. The petitioners cannot be denied the benefit of G.O. Dated 25.11.2005, if they are eligible as per the scheme. Therefore, they cannot be replaced by fresh hands pending consideration of their claim. If the post is created and if the sweeping area is above the limit shown in the Govt. Order, the petitioners are entitled for benefit of regularisation. Otherwise, they will be entitled for the pay protection. Therefore, in either of these contingencies they cannot be replaced by fresh hands. In that view of the matter, the order Ext.P3 by which fresh hands are sought to be appointed in their place, cannot be upheld. Therefore, the petitioners cannot be terminated to provide persons appointed by Ext.P3 in any of the offices where they are working. 11. There will be a direction to the first respondent to pass orders on the claim for regularisation of the petitioners in accordance with G.O.(P) Wpc 34509, 34511 & 34542/2008 6 No.501/2005/Fin. Dated 25.11.2005 after considering all aspects. The same shall be done within a period of three months from the date of receipt of a copy of this judgment. Respondents 2 and 3 shall forward all the required documents to the first respondent within one month from the date of receipt of a copy of this judgment for taking appropriate action by the first respondent, along with the required reports and the sweeping area certificates. The contesting respondents have no right to be appointed in the offices where the petitioners are working as sweepers. It is so declared. But this will not stand in the way of the consideration of the claim of respondents 4 to 7 in any other vacancies, if any, which shall be considered by the second respondent in accordance with law and the judgment above rendered, will not stand in the way of considering the same. The writ petitions are disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/