IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 WP(C).No. 2338 of 2006(C) ----------------------------------- PETITIONER(S): -------------------------- V.C. CHANDRAN, WATCHMAN ON WORKING ARRANGEMENT, KULUKKUR FARM OF ITDP, SHOLAYUR PANCHAYATH (AGED 40, S/O. CHATHU, VETTATHU HOUSE, EZHAKKAD, MUNDOOR, PALAKKAD). BY ADVS.MR.K.S.MADHUSOODANAN MR.T.V.JAYAKUMAR NAMBOODIRI RESPONDENT(S): ------------------------- 1. STATE OF KERALA TO BE REP. BY SECRETARY, TRIBAL DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR, TRIBAL DEVELOPMENT DEPARTMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. PROJECT OFFICER, INTEGRATED TRIBAL DEVELOPMENT PROJECT (ITDP), ATTAPPADI, AGALI. R1 & R3 BY SPL. GOVERNMENT PLEADER MR.P.SANTHOSH KUMAR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 2338/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER DTD. 1.6.92 NO.J1-2093/92 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P2:- COPY OF THE PROCEEDINGS DTD. 2.6.92 OF THE VATTULKKI GIRIJAN CO- OPERATIVE FARMING SOCIETY LTD. P3:- COPY OF THE REPRESENTATION DTD. 10.2.98 TO THE 3RD RESPONDENT. P4:- COPY OF THE ATTENDANCE REGISTER MAINTAINED AT THE FARM SEPARATELY FOR THE PETITIONER FROM MAY 2003 TO OCTOBER 2003. P4(a):- COPY OF THE DO. DO. FROM AUGUST 2005 TO JANUARY 2006. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE CERTIFICATE BY THE ASST. ENGINEER, PWD SHOWING THE SWEEPING AREA OF TRIBAL EXTN. OFFICE. R3(b):- COPY OF THE SKETCH ISSUED BY THE ASST. ENGINEER, PWD SHOWING THE SWEEPING AREA OF TRIBAL EXTN. OFFICE , AGALI. TRUE COPY P.S. TO JUDGE tss V.K.MOHANAN, J. ---------------------------------------- WPC . No.2338 OF 2006 ---------------------------------------- Dated, 13th day of August, 2009 JUDGMENT The petitioner is presently working as Watchman in the Kulukkur Farm, on working arrangement, though he was appointed as Part Time Sweeper in the Tribal Extension Officers' office at Agali on daily wage with effect from 1.6.92. His prayer is to issue a writ of mandamus directing the respondents to regularise the petitioner in service as full time employee under the Tribal Development Department with all consequential benefits and direct the respondents to pay the arrears of wages which is due from 1992 onwards. 2. The case of the petitioner is that as per Ext.P1 order, he was appointed in the Tribal Extension Officers' Office, Agali, as Part Time Sweeper, but as per Ext.P1 order itself, on working arrangement, he was posted at the Kulukkur Farm as Watchman. Thus, according to the petitioner, for the last 17 years, he has been working as Watchman at Kulukkur Farm under the respondents as evidenced by Ext.P2. According to the petitioner, initially his wage was Rs.20/- per day and now it is enhanced to Rs.70/- but he had to attend the work during the 24 hours of the WPC 2338/06. -:2: day. According to the petitioner, he is entitled to get regularised his service in the light of Government Order GO(P) No.501/2005/Fin., dated, Thiruvananthapuram, 25th November, 2005. In support of his claim, he has placed reliance upon the decision of the Hon'ble Supreme Court in Secretary, State of Karnataka v. Umadevi (2006 (4) SCC 1). 3. The respondents have filed a counter affidavit stating that the petitioner is not entitled to get the benefit of the Government Order relied on by the petitioner as the sweeping area will come only 60.27 sq. mtrs. It is also the case of the respondents that at present, there is no post of casual sweeper in the Tribal Extension Centre at Agali. To resist the claim of the petitioner, the respondents also relied on the decision which cited by the petitioner. 4. I have heard Sri K.S.Madhusoodanan, the learned counsel appearing for the petitioner and also the learned Special Government Pleader Sri P.Santhosh Kumar, appearing for the respondents. 5. Counsel for the petitioner submitted that, originally, the petitioner was appointed in the office of Tribal Extension Officer, Agali to a vacant post of Part Time Sweeper. But, by the very same appointment order, on working arrangement, the petitioner was asked to go and work in the Kulukkul Farm as a Watchman and as WPC 2338/06. -:3: directed by the respondents, and as per Ext.P2 order, he had joined duty at the Farm, and thereafter he has been continuing in the said farm without any break. Thus the appointment of the petitioner as per Ext.P1 was perfectly legal and valid. The learned Counsel pointed out that though the petitioner was transferred to the farm and has been working as Watchman, he is being forced to work 24 hours on every day and, that too, for a meagre wage, i.e., Rs.70/- per day. The learned counsel, on the basis of the Government Order referred above, particularly, inviting my attention to paragraph 9 of the said G.O., submitted that the petitioner is entitled to continue as casual sweeper even though the sweeping area is below 100 sq.mtrs., and the petitioner preferred that job considering the meagre wage that is being paid which is in no way sufficient to meet both ends and disproportionate to the hard work he is forced to do there. The learned Counsel on the strength of paragraph 53 in the above referred decision submitted that as the petitioner is working on daily wages for more than 10 years, he is entitled to get the benefit of the direction issued by the Apex Court as contained in paragraph 53 of the said decision. The learned Government Pleader submitted that the post to which he was initially appointed as Part time Sweeper that was available in the Tribal Extension office, has been was abolished subsequently as the sweeping area is below WPC 2338/06. -:4: 100 sq.mts. Therefore, according to the learned Government Pleader, there is no post to accommodate the petitioner in the Agali office. 6. At the outset, I am constrained to observe that the facts revealed which is not disputed by the respondents is highly shocking to the conscience of this Court, as the petitioner, for the last 17 years has been working on daily wages without any other service benefits and forced to work 24 hours on every day for a meagre wage. 7. This Court as per the decision in Mercy v. State of Kerala (2004 2 KLT 848), after considering the agonies and pains of the persons like the petitioner, directed the government to pass appropriate orders within 6 months. In the said decision, this Court has held: “All those part-time Sweepers engaged prior to 6.10.2003 will come under three categories: (1) below 100 Sq.metres, (2) between 100 and 400 sq.metres and (3) above 400 Sq.metres. As the Apex Court has made it clear in several cases, taking note of the fact that the State has enjoyed the fruits of their labour for quite long, for the only reason that they have not been appointed through the Employment Exchange, they shall not be terminated from service.” The Apex Court in Secretary, State of Karnataka v. Umadevi (2006 (4) SCC 1) referred above, particularly, in WPC 2338/06. -:5: paragraph 53, has held: “53. One aspect needs to be clarified,. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa and R.N. Nanjundappa and B.N.Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunal. The question of regularization of the services of such employees may have to be considered on merits in the light for the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Government and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularizations, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” 8. In the light of the above decision, it is very shocking to hear that the petitioner like persons being continuously engaged by the WPC 2338/06. -:6: government or governmental agencies or officers without giving him any service benefits and regularization of his service and also by giving a very meagre amount of Rs.70/- per day as wage. 9. In the present case, as evidenced by Ext.P1, the petitioner was appointed to a post of Part Time Sweeper which was available in the Tribal Extension Office. Had the petitioner continued in that post, he would have certainly entitled to get the benefit of Clause 9 of the G.O. Referred above. However, though the petitioner was appointed to the said post, he was asked to do the work of watchman at Kulukkul farm and as evidenced by Ext.P2, he was joined in that farm as a substitute to one Mr.Chinaraj who was holding the post of Watchman in the Kulukkul Farm and transferred to the Model Welfare Training Centre, Sholayar as Peon. The above fact itself is sufficient to hold that though the petitioner's appointment was as a Part Time Sweeper, he was forced to discharge the work of watchman. Therefore the appointment was on regular basis. But in the case of the petitioner, he is being paid only Rs.70/- per day and he is forced to discharge the duty of watchman for 24 hours per day. According to the petitioner, he is not given sufficient wage for the work done by him and therefore his prayer is to regularise his service in the light of the above decision and the Government order referred above. WPC 2338/06. -:7: 10. The learned Government Pleader stoutly opposed the prayer of the petitioner for regularization of his service and transfer and appointment as Sweeper in the Tribal Extension Centre at Agali on the ground that there is no such post. 11. As I indicated earlier, it is beyond dispute that the petitioner was originally appointed as Part Time Sweeper in the Tribal Extension Centre at Agali, and for not his fault, he was ordered to transfer and post as Watchman in the Kulukkul Farm and he had no option but to comply with the order issued by the respondents. Had he not been transferred to the farm at Kukukkul, certainly, at least he would have been entitled to the benefit of para 9 of G.O.(P) 501/2005/Fin. Dated, Thiruvananthapuram, 25th November, 2005. Though the learned Government Pleader submitted that there is no such post to accommodate the petitioner in the Tribal Extension Office, Agali, in the additional counter affidavit filed by the respondents, it is stated that presently one Smt. Resy belongs to Irula Scheduled Tribe Community is working as Casual Sweeper on a consolidated amount of Rs.1000/-. The said fact would show that a post of Sweeper is necessary in the Tribal Extension Office, Agali. 12. In the light of the above facts and circumstances, respondents 2 and 3 are directed to appoint and accommodate the WPC 2338/06. -:8: petitioner in any of the vacancies available under the respondents 2 and 3, preferable in Palakkad District or in any other district and, if no such vacancy is available, respondents 2 and 3 shall take immediate step to create a post under respondents 2 and 3, for which, they shall approach the first respondent. Thereupon, the first respondent shall issue appropriate orders for the same and the petitioner shall be appointed to such newly created post. The above directions are issued with a view, not to disturb Smt. Resy who claimed to have been appointed by the 3rd respondent as casual Sweeper. On such appointment, the respondents are directed to notionally fix the salary of the petitioner with effect from 25.11.2005, the date of G.O.(P) No.501/2005/Fin. Dated Thiruvanathapuram, for his future salary and service purpose including pensionary benefits. The interim order already passed by this Court will continue till he is appointed as directed above. The writ Petition is disposed of accordingly. V.K.MOHANAN, JUDGE. Kvm/- WPC 2338/06. -:9: V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..