IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 WP(C).No. 25378 of 2007(U) -------------------------- PETITIONER: ------------ SAVITHRI E.V., PART TIME CASUAL SWEEPER, KRISHI BHAVAN, KURUMATHUR, KANNUR DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF AGRICULTURE, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. THE PRINCIPAL AGRICULTURAL OFFICER, KANNUR. BY GOVERNMENT PLEADER SHRI BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.25378 OF 2007 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE SWEEPING AREA CERTIFICATE ISSUED BY ASST.ENGINEER, PWD BUILDING SECTION, TALIPARAMBA WITH COVERING LETTER DT.2.1.2006. EXT.P2: TRUE COPY OF THE PLAN PREPARED BY THE ASSISTANT ENGINEER, PWD BUILDING SECTION. EXT.P3: TRUE COPY OF THE JUDGMENT DATED 18.8.2004 IN W.P.(C) No.24558/04. EXT.P4: TRUE COPY OF THE CONTEMPT CASE FILED BEFORE THIS COURT IN C.C.(C).405/07 EXT.P5: TRUE COPY OF G.O.(MS)NO.45/07/AD DT.28.3.2007. RESPONDENTS' EXHIBIT: EXT.R3(a): GOVT.LR.NO.24290/AW-A2/2007/FIN DT.27.3.2007. TRUE COPY V.GIRI,J. --------------------------- W.P.(C)No.25378 OF 2007 -------------------------------------- DATED THIS THE 18TH DAY OF JANUARY, 2008 J U D G M E N T Petitioner is a casual sweeper engaged in the Kurumathur Krishi Bhavan under the administration and control of the 3rd respondent. The sweeping area serviced by her was measured by the Assistant Engineer of the PWD Building Section and was determined as 104.05 meters as evidenced by Exhibit P1 certificate dt.2.1.2006. Where the sweeping area is in excess of 100 Sq.Meters, the casual sweeper is entitled to parity of wages with a contingent staff. As a matter of fact, the claim for parity was raised even earlier and the petitioner along with others had approached this court by filing W.P.(C)No.24558/04. By Exhibit P2 judgment this court directed the respondents to consider the case of the petitioners in the light of the guidelines issued in the judgment in Mercy v. State of Kerala (2004(2) KLT 848). Pursuant to the direction issued therein, petitioner's case was considered, but was rejected under Exhibit P5 order dt.28.3.07 itself. Petitioner's plea for regularisation was rejected on the ground that the Chief Technical Examiner had reported that the W.P.(C)No.25378/07 2 sweeping area serviced by the petitioner is below 100 Sq.Meters. In other words, since the sweeping area is less than 100 Sq.meters, according to the Government there is no necessity for creation of a part-time post and consequently, the petitioner is not entitled to absorption into regular service. 2. Apparently, on the basis of Clause 9 and 11 of G.O.(P) 501/05 as understood by the Government, petitioner was found to be entitled to a consolidated pay of Rs.600/= per month which means that the petitioner was found to be not entitled to parity of wages with the contingent staff. Exhibit P5 has been challenged in the writ petition. 3. Counter affidavits have been filed by the respondents wherein it is stated that on re-measurement the sweeping area was found to be less than 100 Sq.Meters. It is mainly because certain areas like courtyard, verandah, staircase, etc. were excluded from consideration. There was a reduction in the carpet area also and this was in terms of Circular No.58/07 dt.5.7.2007 issued by the Government. W.P.(C)No.25378/07 3 4. I have heard the learned counsel for the petitioner Shri Kaleeswaram Raj and the learned Government Pleader Shri Bejoy Chandran. 5. Two issues arise for consideration, viz; whether the reassessment of sweeping area undertaken by the Chief Technical Examiner and the consequent acceptance by the Government is correct or not and whether the casual sweepers are entitled to protection of wages under Clause 11 of G.O.(P)No.501/05. The latter issue has been considered by this court in W.P.(C) No.13828/07 and connected cases. It has been firstly held that sweeping area has to be determined in accordance with the guidelines contained in the Appendix to G.O.(P)No.501/05. It has also been held that if there are any circulars which lay down guidelines at variance from G.O(P)No.501/05, then such circular shall be ignored. In other words, the appendix to G.O.(P) No.501/05 shall prevail. 6. It has been further held that assuming that the sweeping area is found to be reduced to below 100 Sq.Meters in the case of any casual sweeper whose claim is to be considered W.P.(C)No.25378/07 4 by the Government, such person will be entitled to protection of wages which she was drawing earlier in terms of Clause 11 to G.O.(P)501/05. 7. In my view, finding in Exhibit P5 as regards the petitioner is erroneous and unsustainable. As a result Exhibit P5 order is set aside to the extent to which it rejects the claim of the petitioner. The Government should reconsider the claim of the petitioner in the light of the observations and directions issued by this court in W.P.(C)No.13828/07 and connected cases and while taking a decision, the Government shall refer to Exhibits P1 and P2 also. Fresh orders shall be passed by the Government within four months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. V.GIRI, JUDGE. dsn