IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 WP(C).No. 2577 of 2008(F) ------------------------------------ PETITIONER: ------------------- P.SAVITHRI, W/O. BALAN, AGED 47 YEARS, PART TIME SWEEPER, FEROKE REST HOUSE, KOZHIKODE, RESIDING AT POOVATHINKATTIL HOUSE, MANNUR P.O., MUKKATHUKADAVU VIA., KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN. RESPONDENTS: ------------------------ 1. THE ASSISTANT ENGINEER, P.W.D. (BUILDING SECTION), NEAR SWADESH GRANITE FACTORY, CHERUVANNOOR, KOZHIKODE. 2. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, TRIVANDRUM. 3. THE STATE OF KERALA, REP. BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.2577/2008-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LAWYER NOTICE SENT BY THE PETITIONER TO THE R.1. DTD. 10/09/07. EXT.P.2: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT TO THE EXECUTIVE ENGINEER/INFORMATION OFFICER DTD. 15/12/2008. EXT.P.3: COPY OF THE REPLY GIVEN BY THE R.2. DTD. 12/01/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 2577 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of March, 2011 J U D G M E N T The petitioner is working as Part-time Sweeper at Feroke Rest House, Kozhikode. She joined service on 05.02.1991 and according to the petitioner at the time of filing the writ petition she had 16 years of service. She was getting only Rs.150/- per month for about 15 years and from 2005 onwards she was being paid Rs.600/-. From July, 2007 onwards the petitioner is being paid Rs.750/- per month. According to the petitioner, as per the Government orders applicable, the petitioner is entitled to Rs.1,250/- + D.A. per month. The same was not being paid to the petitioner. The petitioner also claims that she is entitled regularization in service as per the Government Orders applicable. The petitioner has filed this writ petition seeking the following reliefs: W.P.(C)No. 2577 of 2008 -2- “a) Issue a writ order or direction, directing the respondents to pay wages at the rate of Rs.1,250/- plus D.A. per month to the petitioner forthwith. b) Issue a writ order or direction directing the respondents to pay the entire back wages at the rate of Rs.1,250/- plus D.A. per month to the petitioner forthwith. c) Issue a writ order or direction directing the respondents to regularize the service of the petitioner as part time sweeper.” 2. On 25.11.2008 this court passed the following interim order: “Heard both sides. The grievance voiced by the petitioner is that though she is working as Part time Sweeper for the past 16 years in the Public Works Department's Rest House at Feroke, she is being paid only Rs.750/- per month as emoluments. The learned counsel appearing for the petitioner submits that after the writ petition was filed since July 2008 the petitioner is being paid salary at the rate of Rs.1000/- per mensem. The learned counsel submits that on the terms of G.O. (P) No.501/2005/Fin. dated 25-11-2005 the petitioner is entitled to Rs.1250/- + D.A. at the applicable rates and that she is also entitled to the benefit of the pay revisions effected thereafter. Though this writ petition was admitted on 22-1-2008 till date, notwithstanding repeated adjournments, the respondents have not chosen to file a counter affidavit. In these circumstances, there will be an interim order directing the respondents to pay to the petitioner salary at the rate of Rs.1250/- + D.A. at the applicable rates from the month of November, 2008 onwards. Her entitlement for payment of salary and allowances at the said rates for the period prior to November 2008 will be considered at the time of final disposal.” Pursuant to the same, the petitioner is being paid at the rate of Rs.1250/- + D.A. 3. The respondents cannot deny such salary to the W.P.(C)No. 2577 of 2008 -3- petitioner under law. Therefore the petitioner shall be continued to be paid salary at that rate. Now the question is as to whether the petitioner is entitled to regularization in service. The stand of the 2nd respondent in the counter affidavit is that the petitioner was not employed by the respondents. According to them, the sweeping work of the Rest House was being outsourced to a contractor and the sweeping work is being done by the contractor's employees and contractor's employees are not entitled to regularization as per the Government orders in question. 4. The petitioner has filed a reply affidavit disputing the contentions of the 2nd respondent. According to the petitioner, the petitioner is actually working directly under the respondents and not through the contractors. The petitioner has also produced Ext.P3 information obtained under the Right to Information Act to prove the same. 5. In Ext.P3 information supplied by the Assistant Executive Engineer and Public Information Officer of Building Sub Division, Kozhikode of Public Works W.P.(C)No. 2577 of 2008 -4- Department, after stating that in the Feroke Rest House a person named P. Savithri has not been appointed as Sweeper, it is specifically stated further that, as per records for sweeping work, Smt. P. Savithri has been paid remuneration for the period from 2/1991. It is further submitted that for the period from 2/1991 to 7/2001 a total amount of Rs.26,730/- had been so given: It is further stated therein that, the details of persons employed by contractor would not be entered in the records of the PWD. It is also stated that the service details of persons employed by contractors are not recorded by the department. If the information that details and service details of persons employed by contractors would not be recorded in the records of the PWD, then the records of the PWD and the Rest House would not contain the name of the petitioner. But in Ext.P3 it is specifically stated that as per the records it is seen that Smt. P. Savithri has been paid remuneration for doing sweeping work for the period from 2/1991 onwards and that for the period from 2/1991 to 7/2001 a W.P.(C)No. 2577 of 2008 -5- total amount of Rs.26,730/- has been paid to her. Being a Rest House, the building certainly would require sweeping everyday. That being so, in accordance with the Government order if the sweeping area is 100 sq. mtrs. or more, a post of Part-time Sweeper has to be created and the existing sweeper has to be regularized in service if as on the date of the Government order in 2005 that person was the existing sweeper. Here, despite the protestations in the counter affidavit, from Ext.P3 it is seen that the Rest House is paying remuneration to the petitioner for sweeping work, which information is available in the records of the PWD. It is further stated that details of contract workers would not be recorded in the records. Reading the same together, it is clear that the petitioner was being engaged directly and not through contractor. If that be so and if the total sweeping area is 100 sq. mtr. or above then the petitioner is entitled to regularization in service in accordance with the Government order. Accordingly this writ petition is disposed of with the following directions: W.P.(C)No. 2577 of 2008 -6- If the sweeping of the Rest House is 100 sq. mtrs. calculated in accordance with the Government order, the 1st respondent shall forward a proposal for creation of a post of Part-time Sweeper in the Feroke Rest House, Kozhikode, showing the name of the petitioner as the existing Sweeper as on the date of Government Order dated 25.11.2005 and forward the same to the 3rd respondent within two weeks from the date of receipt of a copy of this judgment. Thereupon the 3rd respondent shall consider the same and pass appropriate orders regarding regularization of the services of the petitioner as Part-time Sweeper of Feroke Rest House, Kozhikode in accordance with the Government Order, as expeditiously as possible, at any rate, within three months from the date of receipt of the proposal from the 1st respondent as directed above. The petitioner shall be continued to be employed as Sweeper by the 1st respondent to sweep the Feroke Rest House, Kozhikode. The petitioner would be entitled to all consequential monetary benefits retrospectively, in accordance with the W.P.(C)No. 2577 of 2008 -7- Government order applicable, if the Government decides to regularize the service of the petitioner. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/