IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WP(C).No. 26752 of 2007(I) ---------------------------------- PETITIONER(S): --------------------- K.A.MYMUNATH BEEVI, W/O MUHAMMED KUNJU, PART-TIME SWEEPER, GOVERNMENT HOMEO DISPENSARY, KALADY, MANIKKAMANGALAM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.M.V.THAMBAN RESPONDENT(S): ----------------------- 1. THE HOMEO MEDICAL OFFICER, GOVERNMENT HOMOEO DISPENSARY, KALADY, MANIKKAMANGALAM P.O., ERNAKULAM DISTRICT. 2. THE DISTRICT MEDICAL OFFICER(HOMEO), KALOOR, ERNAKULAM DISTRICT. 3. DIRECTOR, HOMEOPATHY THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 26752/2007 I APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE GO P NO. 831/80/253/FIN DT. 30/11/80. EXT.P2. COPY OF THE GO MS NO. 850/84/RD DT. 30/08/84. EXT.P3. COPY OF THE COMMON JUDGMENT DT. 12/08/05 IN WP 1863/2004. EXT.P4. COPY OF THE GO P NO. 501/2005/FIN DT. 25/11/2005 BY THE GOVT. EXT.P5. COPY OF THE STAY ORDER DT. 8/12/04 IN IA 16963/2004 IN WPC 35594/2004. EXT.P6. COPY OF THE JUDGMENT DT. 09/09/2005 BY THIS COURT. EXT.P7. COPY OF THE SWEEPING CERTIFICATE DT. 24/08/04 BY THE EXE. ENGINEER. EXT.P8. COPY OF THE SWEEPING CERTIFICATE DT. 15/09/2006 BY THE ASST. ENGINEER BLD. SEC. ALUVA. EXT.P9. COPY OF THE GENERAL CIRCULAR NO. 4695/EB4/05/DH DT. 25/5/2005 BY THE DIRECTOR. EXT.P10. COPY OF THE LETTER NO. 14275/EB1/04/DH DT. 20/1/2006 BY THE DIRECTOR. EXT.P11. COPY OF THE LETTER NO. 55056/A3/2006/H&FWD DT. 25/6/07 BY THE GOVT. EXT.P12. COPY OF THE LETTER NO. E1. 4859/04/DME DT. 25/08/07 BY THE R2. EXT.P13. COPY OF THE LETTER NO. 75037/E. PAY-1/OCT/FIND T. 18/11/2006. BY THE GOVT. EXT.P14. COPY OF THE INTERIM ORDER DT. 7/3/2006 IN WPC 3743/2006 BY THIS COURT. RESPONDENTS' EXHIBITS : NIL. / TRUE COPY / PA TO JUDGE. Tga P.N.RAVINDRAN, J. ------------------------------------- W.P.(C)No.26752 of 2007 -------------------------------------- Dated 26th June, 2009 JUDGMENT Heard Sri.M.V.Thamban, the learned counsel appearing for the petitioner and Sri.P.Nandakumar, the learned Government Pleader appearing for the respondents. 2. The petitioner is a Casual Sweeper working in the office of the first respondent ever since the year 2003. The sweeping area of the first respondent's office was originally determined in the year 1994 as 126.44 m2 as can be seen from Ext.P7. Later, on re-measurement in the year 2006, as can be seen from Ext.P8, the sweeping area was determined by the Assistant Engineer of the Public Works Department, Buildings Section, Aluva as 101.43 m2. The petitioner had earlier moved this Court relying on Ext.P7 certificate, seeking payment of salary at the rate of Rs.1250/= per mensem plus DA in terms of G.O. (P)No.501/2005/Fin. dated 25.11.2005. The said writ petition was disposed of with the observation that the directions issued by the Division Bench of this Court in W.A.No.1863 of 2004 and connected cases will govern the petitioner also. According to the petitioner, she was being paid Rs.1,250/= per mensem plus DA till April, 2007, when the sweeping area was remeasured and fixed as 80.89 m2 and her WP(C).No.26752/2007 2 salary was reduced from Rs.1,250/= per mensem plus D.A to Rs.750/= per mensem. She had in the meanwhile also moved the Government seeking regularisation in service. That request was rejected by the Government on the ground that as the sweeping area is less than 100 m2, the petitioner cannot be regularised in service by creating a post of Part time Contingent Sweeper. In this writ petition, the petitioner challenges the reduction in salary and also the decision taken by the Government that she is not entitled to regularisation in service. 3. A counter affidavit has been filed on behalf of the fourth respondent wherein it is stated that in view of a large number of complaints, the sweeping area of the first respondent's office was remeasured by the Chief Technical Examiner of the Finance Department and it was found on such measurement that the sweeping area is only 80.89 m2 as set out in Ext.R4(a) report. It is stated that in view of the said fact, the petitioner's request for regularisation in service was rejected. It is also stated that the Government have requested the Chief Engineer of the Public Works Department Buildings Section to take disciplinary action against the Assistant Engineer who has issued Ext.P8 sweeping area certificate, for furnishing false information. WP(C).No.26752/2007 3 4. From the pleadings it is not clear whether the Chief Technical Examiner of the Finance Department had remeasured the sweeping area with notice to the petitioner and in her presence. The counter affidavit is silent on this aspect. Ext.R4(a) also does not throw light on the situation. The petitioner has filed a reply affidavit wherein it is contended that a post of Part-time Contingent Sweeper had already been sanctioned in the first respondent's office even before the Government order dated 25.11.2005 providing for regularisation of Casual Sweepers was issued and that as Casual Sweepers engaged in the first respondent's office were being paid Rs.1,250/= per mensem plus DA, the stand taken by the respondents is not tenable. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. In my opinion, the sweeping area should have been determined only in the manner prescribed in paragraph 8 of G.O.(P)No.501/2005/Fin. dated 25.11.2005 which stipulates that it shall be done by an official of the Public Works Department after notice to the incumbent Sweeper and in his/her presence. In the instant case, the Chief Technical Examiner of the Finance Department has determined the sweeping area. Such determination was, apart from the fact that it is not in terms of the stipulations in the Government order dated 25.11.2009 also without WP(C).No.26752/2007 4 notice to the petitioner and in her absence. I am therefore persuaded to hold that no reliance can be placed on Ext.R4(a). It was by reason of Ext.R4(a) that the petitioner's request for regularization was rejected. No other reason has been set out in Ext.P11 to reject the petitioner's application for regularization. 6. I accordingly allow this writ petition, quash Exts.P9, P11 and P12 and direct the Government to reconsider the petitioner's request for regularization in service in terms of G.O.(P) No.501/2005/Fin. dated 25.11.2005 after getting the sweeping area determined through an official of the Public Works Department with notice to the petitioner and in her presence. Such re-measurement shall in view of the objection raised by the Government, be conducted by an officer other than the Assistant Engineer of the Public Works Department Buildings Section, Aluva who had earlier issued Ext.P8 certificate, if the same officer is presently working as Assistant Engineer in the Public Works Department, Buildings Section, Aluva. If the Assistant Engineer now in office is not the officer who had earlier issued Ext.P8 certificate, the sweeping area shall be got determined through the Assistant Engineer. This shall be done within one month from the date on which the petitioner produces a certified copy of this judgment before the Secretary to Government, Health and Family Welfare Department. The Government shall after a report regarding WP(C).No.26752/2007 5 the sweeping area is received, take a decision in the matter of regularization of the service of the petitioner expeditiously and in any event within three months from the date on which the sweeping area certificate is furnished by the official respondents. The Government shall while passing orders as directed above, have due regard to the terms and conditions stipulated in G.O.(P)No.501/2005/Fin. dated 25.11.2005. The Government shall immediately after orders are passed as directed above, communicate a copy thereof to the petitioner. Till then, status quo as on today shall be maintained. It would be open to the petitioner, if she is aggrieved by the order passed by the Government to challenge the same in other appropriate proceedings. The writ petition is allowed as above. No costs. P.N.RAVINDRAN Judge TKS