IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 WA.No. 1963 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.36179/2007 Dated 16/07/2009 .................... APPELLANTS/RESPONDENTS 1 TO 4:- ---------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, (FINANCE), GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT ADMINISTRATION DEPARPTMENT, GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PANCHAYATHS, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR OF PANCHAYATHS, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.M.P.MUHAMMED FAZIL. RESPONDENTS/ PETITONER & 5TH RESPONDENT:- ----------------------------------------------------------------------- 1. K.VASU, PART TIME CASUAL SWEEPER, BUS STAND AND WAITING SHED, MANNAMCHERRY PANCHAYATH,MANNAMCHERRY P.O., ALAPPUZHA DISTRICT. 2. THE SECRETARY, GRAMA PANCHAYATH, MANNAMCHERRY P.O., ALAPPUZHA DISTRICT. ADV.SRI.K.N.RAMACHANDRA PANICKER FOR R1 ADV. SRI.A.KRISHNAN FOR R2 SRI.V.SATHEESH FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON 18/08/2010 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = WA.No.1963 of 2009. = = = = = = = = = = = = Dated this the 18th day of August, 2010. J U D G M E N T Gopinathan, J. The appellants are respondents 1 to 4 in WP(C) No.36179/2007. The respondents are the petitioner and the 5th respondent. Ever since 1994, the first respondent had been working as a casual sweeper for cleaning the bus stand and waiting shed belonging to Mannamcherry Grama Panchayat of which the 2nd respondent is the Secretary. The first respondent was engaged on contract basis, renewed from year to year. A number of similarly placed casual sweepers were working in the district. A few were working in the very same Grama Panchayat. It is alleged that the service of the first respondent was not regularized since the appellants didn’t give sanction to create the post of sweepers. Some of the similarly placed part time WA.No.1963 of 2009. -: 2 :- sweepers preferred a writ petition as WP(C) No.17776/2004 before this Court seeking a declaration that they are entitled to regularization. This Court by Ext.P3 judgment dated 18-6-2004 directed the appellants to pass appropriate orders on the representation made by the petitioners therein regarding the regularization. Appellants took up the matter in appeal as WA.No.257/2005. This Court disposed the writ appeal along with a number of similar writ appeals. The appellants were not successful as evidenced by Ext.P4 judgment. Following Exts.P3 and P4, Ext.P5 order was passed by the appellants. Though certain other similarly placed part time sweepers were regularized in the light of Ext.P5, the service of the first respondent was not regularized. Hence, the first respondent moved this Court by filing WP(C)No.12261/2005. The learned single Judge by Ext.P6 judgment dated 14-6-2006 arrived at a finding that in the light of Ext.P5 Government Order, the claim of the petitioner is liable to be considered. Consequently, WA.No.1963 of 2009. -: 3 :- the learned Judge directed the appellants to consider the claim of the first respondent for which he was directed to file a representation. It was further directed to retain the first respondent till a decision is taken on the representation so made. 2. By Ext.P7 order dated 13.7.2007, the appellants dismissed the representation filed by the first respondent stating that he had been working on contract basis at a low rate agreed by him and that the first respondent would not come within the purview of Ext.P5 order. Assailing Ext.P7 order, the first respondent preferred WP (C)No.36179/2007. The learned single Judge by judgment dated 16.7.2009 allowed the writ petition and directed the appellants to regularize the service of the first respondent with all monetary benefits from the date of regularization. Assailing the above judgment, this writ appeal was filed. 3. We heard the learned Government Pleader, the learned counsel appearing for the first respondent as well as the learned Standing Counsel for the second WA.No.1963 of 2009. -: 4 :- respondent. 4. The fact that the first respondent had been sweeping the bus stand and waiting shed at Mannamcherry since 1994 is admitted. Ext.P8 would show that in 2003 a part time sweeper attached to the office of the second respondent was promoted and left the office. By Ext.P8 resolution dated 15.1.2003 the panchayat committee requested the appellants to accord sanction to post the first respondent in the vacancy created by S.Prasanna, who was promoted. Ext.P9 would show that on 28.4.2003 the very same resolution was repeated by the second respondent. But the appellants didn't heed the request. Ext.P10 would show that the second respondent by the resolution dated 25.11.2006 requested the appellants to create a post of part time sweeper to accommodate the first respondent in the light of Ext.P6 judgment in WP(C)No.12261/2005. Ext.P19, a counter-affidavit filed by the second respondent in Ext.P6 writ petition would show that the first respondent is a WA.No.1963 of 2009. -: 5 :- sincere and honest man employed by the second respondent since 1994 for the sweeping of bus stand and waiting shed at Mannamcherry and had been satisfactorily discharging duties. The second respondent could not manage the cleaning of the bus stand and the waiting shed without engaging a part time sweeper. Therefore, the service of a part time sweeper is unavoidable to sweep the bus stand and waiting shed. There is no case that the area to be sweeped is anything lesser than the area required to appoint a part time sweeper. Having heard either side, we find no good reason to conclude that the first respondent would not come within the purview of Ext.P5. No good reason is coming forward for not applying the procedure prescribed in Ext.P5 in the case of the first respondent. In the above circumstance, we find that in the light of Ext.P5, the learned single Judge was correct in directing the appellants to regularize the service of the first respondent. The direction given by the learned single Judge for regularization of the first respondent is just and WA.No.1963 of 2009. -: 6 :- appropriate and in no way vitiated so as to interfere in appeal. The writ appeal is devoid of merits. It is only to be dismissed. Accordingly, the writ appeal is dismissed with no order as to costs. C.N.RAMACHANDRAN NAIR, (Judge) P.S.GOPINATHAN, (Judge) Kvs/-