IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 WP(C).No. 4253 of 2009(F) ------------------------------------- PETITIONER: ------------------- SINDHU PETER, PART TIME SWEEPER, OFFICE OF THE SUB REGISTRAR, POTHANICAD, ERNAKULAM DISTRICT. BY ADV. SMT.P.V.ASHA. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT., DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. INSPECTOR GENERAL OF REGISTRATION, THIRUVANANTHAPURAM. 3. THE DISTRICT REGISTRAR, ERNAKULAM. 4. THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, POTHANICAD, ERNAKULAM DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER MR. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.4253/2009-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPRESENTATION DTD. 25/10/05 OF PETITIONER TO THE R.3. EXT.P.2: COPY OF THE INTERIM ORDER DTD. 07/12/2005 IN W.P.(C).34062/05. EXT.P.3: CP, G.O.(P) 501/2005/FIN. DTD. 25/11/2005. EXT.P.4: COPY OF THE JUDGMENT DTD. 02/06/06 IN W.P.(C).34062/05. EXT.P.5: COPY OF THE REPRESENTATION DTD. 06/06/06 OF PETITIONER. EXT.P.6: COPY OF THE LETTER DTD. 18/11/08 OF THE R.1. EXT.P.6.A: COPY OF THE LAWYER NOTICE DTD. 21/01/09 TO R.1. EXT.P.7: COPY OF THE ORDER DTD. 07/02/09 OF R.4. EXT.P.8: COPY OF THE CALL LETTER DTD. 25/11/2005 ISSUED BY R.3. TO A CANDIDATE. EXT.P.9: COPY OF THE CERTIFICATE ISSUED BY THE ASSISTANT ENGINEER, PWD. EXT.P.10: COPY OF THE G.O.(RT) NO. 133/2009/TD. DTD. 06/02/2009. EXT.P.11: COPY OF THE COUNTER AFFIDAVIT IN W.P.(C).NO.34062/05. RESPONDENTS' EXHIBIT: EXT.R2.A: COPY OF THE STATEMENT SHOWING DETAILS FOR WORK AND REMUNERATION OF THE PETITIONER. //TRUE COPY// P.S. TO JUDGE. Prv. P.N.RAVINDRAN, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 4253 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 17th day of July, 2009 JUDGMENT Head Smt. P.V. Asha, the learned counsel appearing for the petitioner and Sri.Antony Mukkath, the learned Government Pleader appearing for the respondents. 2. The petitioner is a Part-time Sweeper working in the office of the fourth respondent ever since 1-7-1998. While she was thus working, the Government issued G.O.(P) No.361/2005/Fin. dated 2-8-2005 laying down the guidelines for regularization of existing Casual Sweepers. Pursuant to the judgment of a Division Bench of this Court in W.A.No.1863 of 2004 and connected cases, the Government issued Ext.P3 order dated 25-11-2005 laying down the guidelines for regularization of Casual Sweepers. Paragraph 8 thereof provides for regularization of existing Casual Sweepers employed in offices having a sweeping area exceeding 100 S. mts. by creating a post of Part-time Contingent Sweeper. After Ext.P3 Government order was issued, the petitioner filed W.P.(C) No. 34062 of 2005 in this Court claiming regularization of service. 3. In the said writ petition, the respondents filed a counter affidavit admitting that the petitioner is working in the office of the W.P.(C) No. 4253/09 2 fourth respondent since July, 1998. In the light of the said submission, this Court by Ext.P4 judgment delivered on 2-6-2006 directed the Government to consider the claim of the petitioner for regularization in service, in the light of the stipulations in Ext.P3 Government order within the time limit fixed therein. Pursuant to the direction issued by this Court in Ext.P4 judgment, the petitioner submitted Ext. P5 representation dated 6-6-2006. Even after the time limit fixed in Ext.P4 judgment, there was no progress in the matter. She thereupon caused Ext.P6A lawyer’s notice issued to the Secretary to Government. Thereafter by Ext.P7 order dated 7-2-2009, the fourth respondent terminated the service of the petitioner on the ground that the Government have by order passed on 6-2-2009 rejected her request for regularization. Ext.P10 is the order thus passed rejecting the petitioner's request for regularization in service. This writ petition was thereupon filed challenging Exts.P7 and P10 and seeking a writ in the nature of mandamus commanding the respondents to regularize the petitioner in service with effect form 1-7- 1998 with all attendant benefits. 4. The petitioner contends that the reasons stated in Ext.P10 to decline her request for regularization in service are untenable and cannot be sustained in the light of the stipulations in paragraph 8 of Ext.P3 Government order. The respondents have filed a counter affidavit W.P.(C) No. 4253/09 3 justifying their action and contending that besides the petitioner, her mother Smt.Simla Peter and sister Smt.Ammini Pathrose had also worked as daily rated Sweepers and therefore the petitioner cannot claim regularization in service. The operative portion of Ext.P10 reads as follows:- “The petitioner was working as Part-time Sweeper on daily wages from 01-07-1998 and hence her service was liable to be terminated on appointment of a Part-time- Sweeper on regular basis through the Employment Exchange. The post of the Part-Time Sweeper in the Sub Registrar Office, Pothanicad is not a sanctioned post and hence regularization of the service of the petitioner to the post is not possible. The petitioner approached the High Court to tide over the situation and she was allowed to continue in service in view of the judgment, wherein it has been ordered to allow her to continue till disposal of her representation by the respondent. The file was misplaced in the midst of demolition of the cabin in the section and Government could not dispose the representation on time.” 5. A reading of Ext.P10 indicates that the petitioner’s request for regularization in service was rejected on the ground that there is no sanctioned post of Part-time Sweeper in the fourth respondent’s office and therefore, she cannot be regularized in service. However, in the counter affidavit the stand is taken that besides the petitioner, her sister and mother had also been engaged to work on daily wage basis. The petitioner has filed a reply affidavit and produced along with it Ext.P11, the counter affidavit filed by the fourth respondent herein who was the third respondent in W.P.(C) No. 34062 of 2005. The fourth respondent W.P.(C) No. 4253/09 4 has in paragraph 3 of Ext.P11 counter affidavit categorically stated that the petitioner has been continuously working as Part-time Sweeper in his office from July, 1998 to July, 2003 and that thereafter she was given employment imposing a break in the light of G.O.(P) No.390/2003/Fin. Dated 17-7-2003. 6. I have considered the submissions made at the Bar by the learned counsel on either side. In the light of the categorical admission made by the fourth respondent in Ext.P11 counter affidavit filed by him in W.P.(C) No. 34062 of 2005, the respondents cannot now contend that the petitioner has not been continuously working as Casual Sweeper in the fourth respondent office. Further, in Ext.P10 the Government have no case that the petitioner was not the only Casual Sweeper working in the office of the fourth respondent or that any other person has staked a claim for regularization. The only reason stated in Ext.P10 for not regularizing the petitioner in service is that there is no sanctioned post against which her service can be regularized. In my opinion, the stand taken by the Government in Ext.P10 is plainly untenable. Paragraph 8 of Ext.P3 Government order contemplates regularization in service by creating a post of Part-time Sweeper. In other words, only after a post is created can an existing Casual Sweeper be regularized in service. The reason put forward in the counter affidavit to reject the request for W.P.(C) No. 4253/09 5 regularization cannot also be sustained, as it runs counter to the averments in Ext.P11 counter affidavit filed in W.P.(C) No.34062 of 2005. In the result, this writ petition is allowed, Ext.P10 is quashed and the Government are directed to issue orders regularizing the petitioner in service in tune with stipulations in paragraph 8 of Ext.P3 Government order dated 25-11-2005. The service of the petitioner shall be regularized with effect from 18-6-2001 in terms of the stipulations in paragraph 8 thereof. Needless to say, the petitioner will be entitled to the salary and allowances at the applicable rate with effect from the date of regularization. Orders in that regard shall be issued within two months form the date on which the petitioner produces a certified copy of this judgment before the Secretary to Government, Taxes department. Payment of arrears of salary and allowances if any shall be made within another period of two months thereafter. P.N.RAVINDRAN, JUDGE. mn.