IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 WP(C).No. 30811 of 2007(R) ---------------------------------------- PETITIONER(S): ------------------------ P.K. KAVITHA, W/O. SATHEESAN, PART-TIME SWEEPER, OFFICE OF THE SPL.TAHSILDAR(LA) I.I.P., ANGAMALY, ERNAKULAM DISTRICT. BY ADV. MR.M.V.THAMBAN RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, ERNAKULAM. 3. THE SPECIAL TAHSILDAR (LA), I.I.P., ANGAMALY, ERNAKULAM DISTRICT. GOVERNMENT PLEADER MR.ANTONY MUKKATH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30811/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF GO(P) 831/80/253 FIN DT. 3.11.80. P2:- COPY OF GO(MS) 850/84/RD DT. 30.8.84. P3:- COPY OF JUDGMENT DT. 9.2.87 IN OP. 5444/86 OF THE HONOURABLE HIGH COURT OF KERALA. P4:- COPY OF JUDGMENT DT. 29.11.89 IN OP. 6748/87 BY THE HONOURABLE HIGH COURT OF KERALA. P5:- COPY OF JUDGMENT DT. 17.9.99 IN OP. 17201/97 BY THE HONOURABLE HIGH COURT OF KERALA. P6:- COPY OF THE JUDGMENT DT. 5.10.02 IN OP. 18615/02. P7:- COPY OF THE JUDGMENT DT. 16.3.04 IN WPC. 9179/04. P8:- COPY OF LETTER NO.105/02/A1 DT. 3.4.02. P9:- COPY OF THE JUDGMENT DT. 12.8.05 IN WA. 1863/04. P10:- COPY OF GO(P) 501/05 FIN. DT. 25.11.05. P11:- COPY OF THE CERTIFICATE DT. 29.5.06 ISSUED BY THE ASST. ENGINEER ALUVA. P12:- COPY OF THE LETTER NO.75037/EX-PAY-1/OCT/FIN. DT. 18.11.06. P13:- COPY OF THE INTERIM ORDER DT. 7.3.06 IN WPC. 3743/06. P14:- COPY OF THE LETTER DT. 29.6.08 SENT BY THE COUNSEL. P15:- COPY OF THE LETTER NO.A1-738/01 DT. 8.7.08. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.30811/2007-R ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 26th day of March, 2009 J U D G M E N T The petitioner herein was working as a part time sweeper from 01/12/1998 to 19/07/2008, the date on which the office stands abolished. She was working as such in the office of the Special Tahsildar (Land Acquisition), Idamalayar Irrigation Project, Angamaly. The sweeping area was above 400 sq.mts. The petitioner had been agitating for payment of remuneration in the scale of pay allowable to part time sweepers in accordance with the various Government Orders in the matter. The petitioner has referred to various judgments of this Court wherein, in similar circumstances, other part time sweepers were paid remuneration at the rate applicable from time to time. Ext.P6 is one of such judgments. 2. Since the petitioner was not paid the benefit, she along with another aggrieved person approached this Court by filing a writ petition, namely, W.P.(C).No.9179/2004, which was disposed of by Ext.P7 judgment dated 16/03/2004. She is the first petitioner therein. In paragraph (3) of the judgment, this Court directed that the respondents should take note of the situation and pass appropriate orders considering the orders of the W.P.(C) No.30811/2007 -:2:- Government and arrears of pay, in respect of the actual work done by the petitioners, are to be extended to them effective from 25/11/1998. It was further directed that the action should be taken within a period three months from the date of receipt of the copy of the judgment. Thereafter, she was paid arrears for one year during 2004. The petitioner was sanctioned pay at the rate of Rs.1500/- plus DA also. But the same was reduced to Rs.600/- per month from September 2007. 3. It is pointed out that the said reduction is not in accordance with the various judgments of this Court and the provisions of Ext.P10 Government Order dated 25/11/2005. 4. The main relief sought for in the writ petition is for a direction to regularise the service of the petitioner as part time sweeper from 01/12/1998 and pay arrears also from 01/12/1998 upto the year 2004 and also to pay balance salary from September 2007 onwards. 5. In the counter affidavit filed on behalf of the second respondent, it is stated that the petitioner was working as casual sweeper from 01/12/1998 and she was being paid Rs.600/- per month. It is raised from Rs.600/- to Rs.1250/- plus DA per month in the light of the common judgment in W.P.(C).No.30927/2003 and Ext.P7 judgment. It is further pointed out that the same has been paid at that rate upto August 2007. Since W.P.(C) No.30811/2007 -:3:- the sweeping area was above 100 sq.mts, a proposal for creation of the post of part time sweeper has been sent to the Government vide letter No.E2/19/07 dated 09/04/2007. But since the office of the third respondent was a temporary establishment that was not sanctioned. It is pointed out that the office stands abolished from 31/05/2008 as per proceedings No.E2- 45162/03 dated 03/06/2008. 6. The respondents dispute the claim of the petitioner for payment of remuneration at the enhanced rate. 7. The question is whether the petitioner is entitled for regularisation and for grant of enhanced wages. 8. The scheme for regularisation has been brought down by the Government order dated 25/11/2005. Inspite of the judgment, Ext.P7, the entire benefits due to her have not been sanctioned so far. Paragraphs (8), (10) and (11) of the Government Order dated 25/11/2005, confer various benefits including regularisation. The learned counsel for the petitioner submits that if at the right point of time, orders of regularisation had been passed, she would have got appointment in some other office even by way of transfer. Paragraph (10) of Ext.P10 Government Order allows accommodation of the claimants in other offices also and the Government will have to take a decision in the matter. As pointed out in the counter W.P.(C) No.30811/2007 -:4:- affidavit, the matter had been reported to the Government earlier but nothing was done thereafter. The question is whether since the office stands abolished, the right conferred on the petitioner under Ext.P10 could be denied. In a recent judgment in W.P.(C).No.10774/2008, in regard to the casual sweepers working in the office of the Special Tahsildar (LR), Kasargode, the contention of the respondents therein that since the office is of a temporary nature, the casual sweepers are not entitled for the benefits under G.O.(P).No.501/05/Fin dated 25/11/2005, was rejected. It was held thus, “the said Government Order does not make a distinction amongst Government Offices as such, with reference to whether they are a permanent government office or temporary as is now sought to be made. May be, the office of the Special Tahsildar (LA) will continue till such time as the acquisition proceedings are over. But the staff working in such offices are not temporary staff whose work will depend only on the existence of any land acquisition proceedings. The Special Tahsildar (LA) is an officer in the Revenue Department like any other Government servant. The stand taken by the Government in Ext.P3 is not correct and is unsustainable.” I respectfully agree with the above view. Therefore, going by the scheme she was entitled for regularisation if she satisfies the conditions namely, sweeping area and the like. Going by paragraph (8) of Ext.P10, the post has W.P.(C) No.30811/2007 -:5:- to be created and the regularisation has to be effected from the date of appointment of the casual sweeper or from 18/06/2001, whichever is later. Therefore, appropriate orders will have to be passed in accordance with the said provision in paragraph (8) regularising the service of the petitioner from 18/06/2001. 9. The issue therefore will have to be considered by the Government in accordance with the scheme. Regarding the claim for arrears, already by Ext.P7 judgment directions have been issued to extend the benefit from 27/11/1998, and therefore, the petitioner will be entitled for the benefit of arrears from that date. The respondents have extended the benefit only for a short period. Therefore, the arrears will have to be quantified and disbursed in accordance with Ext.P7 judgment at the rate as shown therein. Regarding the payments to be made, needless to say that the same will be governed by clause 11 of Ext.P9. 10. There will be a direction to the Government to consider the claim for regularisation of the petitioner in accordance with Ext.P10 Government Order and in the light of the findings herein, and pass appropriate orders therein within four months from the date of receipt of a copy of this judgment. The arrears which have already been directed to be paid as per Ext.P7 judgment will be quantified and the amount as such will W.P.(C) No.30811/2007 -:6:- be disbursed within the period fixed already. Depending upon the orders to be passed by the Government, the petitioner's claim for accommodation in any other vacancy in a different office could be considered by the Government since she was entitled for the benefit of regularisation as on the date of Ext.P10 Government Order. The petitioner will be granted a posting in the next arising vacancy in any offices which the respondents, may specify in that regard. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms