IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 25944 of 2008(L) -------------------------------------- PETITIONER(S): ---------------------- SARAKUTTY K.M., PART TIME CASUAL SWEEPER, PWD (BUILDINGS), SECTION OFFICE, SULTAN BATHERY P.O., WAYANAD DISTRICT. BY ADV. MR.KALEESWARAM RAJ RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF PUBLIC WORKS, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, PWD ADMINISTRATION, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, PWD BUILDING DIVISION, KALPATTA. 4. THE ASSISTANT EXECUTIVE ENGINEER, PWD BUILDINGS SUB DIVISION, SULTAN BATHERY, WAYANAD DISTRICT. 5. THE ASSISTANT ENGINEER, PWD BUILDING SECTION, SULTHAN BATHERY. R1 TO R5 BY GOVERNMENT PLEADER SMT.N. SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 25944/2008-L APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPLICATION FOR CREATION OF POST OF PART TIME CONTINGENT SWEEPER. EXT.P2: COPY OF THE LETTER DATED 30/11/2006 SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT. EXT.P3: COPY OF THE LETTER DATED 13/07/2006 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 3RD RESPONDENT TOGETHER WITH PLAN. EXT.P4: COPY OF THE LETTER DATED 26/04/2003 SUBMITTED BY THE 3RD RESPONDENT TO THE SUPERINTENDING ENGINEER, PWD BUILDING & LOCAL WORKS, KOZHIKODE. EXT.P5: COPY OF THE G.O.(P)NO.501/2005 DATED 25/11/2005. EXT.P6: COPY OF THE JUDGMENT DATED 15/10/2007 IN W.P.(C). NO. 8047/2007. EXT.P7: COPY OF THE G.O.(RT)NO.969/08 DATED 03/07/2008. EXT.P8: COPY OF THE DETAILED REPORT ISSUED BY THE 4TH RESPONDENT. EXT.P9: COPY OF THE LETTER DATED 13/03/2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ V.GIRI, J ------------------- W.P.(C).25944/2008 -------------------- Dated this the 31st day of March, 2009 JUDGMENT Petitioner was engaged as a casual sweeper in the PWD Building Section at Sulthan Bathery with effect from 22.4.1992. The office of the PWD Building Section at Sulthan Bathery functions in the 1st floor of the Building from 1990 onwards. When the 1st floor was constructed, Building Section office and the Local Works Section office started functioning in the 1st floor. It seems that a Part Time Sweeper posted in the PWD Building Sub Division, had swept the 1st floor and the ground floor upto 21.4.1992. The sweeping area of the 2 floors was 294.42 sq.mtrs. Thereafter, from 22.4.1992, petitioner was engaged as a casual sweeper in the PWD Building Section, Sulthan Bathery, and she had serviced the 1st floor. 2. Petitioner along with others had approached this Court, in O.P.38515/2002 inter alia seeking W.P.(C).25944/2008 2 parity of wages with the contingent staff. It will have to be noted that many casual sweepers engaged all over the State, had approached this Court in other writ petitions. Government had issued an order inter alia interdicting engagement of casual sweepers. The learned Judge of this Court in Mercy v. State of Kerala (2004 (2) KLT 848) directed regularization of the services of casual sweepers in various Government Offices, who were in service prior to 6.11.2003 subject to certain conditions. The petitioner's claim was also to be considered by the Government. While so, it came about that the Local Works Section of the Public Works Department which was functioning in the 1st floor of the Building ceased to function with effect from 30.6.1998. Going by the report submitted by the Assistant Executive Engineer in the PWD, who is the controlling authority of the petitioner, a portion of the office of the 1st floor of the Building came to be occupied by the Sub Division of the Local Self Government Department. That continued from W.P.(C).25944/2008 3 1.7.1998 to 31.3.2003 and thereafter, from 1.4.2003 to 30.6.2003. What seems to be a consistent feature over these periods was that a major portion of the office space continued to be occupied by the PWD Building Section and though the Local Self Government Department Sub Division shifted to their premises with effect from 31.12.2003, yet another Section of the Local Self Government Department was functioning from 1.1.2004 to 31.4.2006. Petitioner continued to service the entire 1st floor of the building. Taken along with a portion of the yard which is common to the 1st floor and the ground floor, the sweeping area serviced by the petitioner was 107.48 sq.mtrs. 3. Aforementioned are the details culled out from the report given by the Assistant Executive Engineer and affirmed by the Executive Engineer, as evidenced by Ext.P8 and P9. W.P.(C).25944/2008 4 4. In the meanwhile, Government came out with an order dated 25.11.2005, Ext.P5, laying down the guidelines for regularization of the services of casual sweepers in Government Offices and creation of posts of Part Time Sweepers. It is inter alia provided in the said order that if the sweeping area serviced by a casual sweeper is in excess of 100 sq.mtrs, Government ought to sanction a post of Part Time Sweeper and further direct regularization of the services of the incumbent. 5. Going by the report forwarded by the Assistant Executive Engineer, Government ought to have directed regularization of the services of the petitioner in terms of G.O.(P).501/2005Fin. Dated 25.11.2005. But the claim was rejected as evidenced by Ext.P7; operative portion of the same reads as follows:- “As directed, in the judgment the report of the Executive Engineer, W.P.(C).25944/2008 5 Buildings Division, Kalpetta has been obtained and he has reported that the area swept by Smt.Sarakutty comes to 68.66 sq.mtrs. He has also reported that earlier it is seen reported as 107.48 sq.mtrs, which includes the sweeping area of LSGD Sub Division/Buildings Section, Sulthan Bathery. One Sri. Ramdas, Part Time Sweeper was posted in LSGD Sub Division, Sulthan Bathery on 1.7.2003. There exist a sanctioned post of PT Sweeper and the area vacated by LSGD Section, Sulthan Bathery is kept locked from 1.1.2007. The petitioner was heard on 16.6.2008. She has not produced any document to prove that she was engaged to sweep the area more than what was reported by the Executive Engineer, ie, 68.66 sq.mtrs which is below 100 sq.mtrs. G.O.(P). 501/2005/Fin.Dated 25.11.2005 read above stipulates that if the sweeping area is above 800 sq.mtrs but below 900 sq.mtrs, a PT Sweeper and a casual sweeper can be engaged. As W.P.(C).25944/2008 6 the area swept by Smt.Sarakutty is below 100 sq.mtrs. even her engagement as Casual Sweeper was unwarranted and hence, the question of her regularization as PT Sweeper does not arise as per the provisions in G.O.(P).501/05/Fin.Dated 25.11.2005.” 6. Ext.P7 has been challenged in the writ petition. A detailed counter affidavit has been filed by the respondents. I heard Mr.Kaleeswaram Raj, learned counsel for the petitioner and Smt.Sudha Devi, learned senior Government Pleader. 7. I referred to the details culled out from Exts.P8 and P9, which are the reports forwarded by the Assistant Executive Engineer and the Executive Engineer to the Government, for the purpose of enabling the Government to take a decision in the matter of regularization of the services of the petitioner in terms of G.O.(P). No.501/2005 dated 25.11.2005. It is not open to W.P.(C).25944/2008 7 the respondents to disown the details furnished in Exts.P8 and P9. Moreover, I have gone through Ext.P8, which meticulously gives the dimensions of the area occupied by the Building Section of the PWD. What seems to have weighed with the Government while passing Ext.P7 is that the area occupied by the Building Section of the PWD, which alone is currently in occupation of the 1st floor of the building in question, officially, is only 68.66 sq.mtrs. (going by Ext.P9 report forwarded by the Executive Engineer, the area seems to be 86.66.sq.mtrs). It is seen that the remaining portion of the building in the 1st floor was actually occupied by the Local Self Government Department till 31.12.2006, when they had shifted to the new building. But obviously the premises which have to be swept by the casual sweeper would not undergo a diminution and it is only reasonable to presume that the officials of the PWD, occupying one portion of the 1st floor, would naturally start occupying the remaining portion of the same floor when such W.P.(C).25944/2008 8 space is made available. Even if it is assumed that a portion of the building earlier occupied by the LSGD remains locked from 1.1.2007, it will not result in a diminution of the work done by the casual sweeper. Her job was to sweep and she continued to sweep the premises whether a portion of the premises was kept locked or not. 8. Government should have approached the issue in a realistic manner. It is again only reasonable to presume that portion of the 1st floor which was also occupied by the LSGD till 31.12.2006 and which is alleged to be kept locked from 1.1.2007, is nevertheless a Government building and meant to be used for Government purposes. It should either be allotted to some other Government office or should be made available to the Building Section of the PWD itself. Obviously it will then require the services of a casual sweeper. Would the Government allow a situation where, at that point of time, services of another casual sweeper will W.P.(C).25944/2008 9 have to be engaged to sweep the area which was earlier occupied by the LSGD and forming part of the 1st floor of the same building ? Further, is it a case where the premises, now not occupied by the Building Section of the PWD, need not be swept at all ? Taking a realistic view of the matter, one is constrained to come to the conclusion that the sweeping area which is being serviced by the petitioner from 22.4.1992 till date obviously has not undergone any diminution. It is more than 100 sq.mtrs. These are the facts that are discernible from the reports given by the Assistant Executive Engineer, who is the head of the office, where the petitioner serves. I do not find any justifiable reason for the Government to ignore the facts and figures given in Ext.P8 and endorsed in Ext.P9. Had the Government adopted a more realistic and practical approach, a low paid servant like a casual sweeper would not have been compelled to approach this Court again and again. W.P.(C).25944/2008 10 9. I am satisfied that the view taken in Ext.P7 is therefore, completely unsustainable and it is so demonstrated with reference to the reports forwarded by the Assistant Executive Engineer and endorsed by the Executive Engineer in Exts.P8 and P9. Ext.P5 Government Order has been misconstrued in the case of the petitioner. 10. Ext.P7 is therefore quashed. Government shall pass fresh orders treating the sweeping area serviced by the petitioner, a casual sweeper in service from 22.4.1992, as in excess of 100 sq.mtrs and an order shall therefore, be passed sanctioning a post of P.T.Sweeper in the office of the PWD (Buildings) Section in Sulthan Bathery and directing regularization of the services of the petitioner, in terms of G.O.(P).501/2005 dated 25.11.2005. Such order shall be passed within three months from the date of receipt of a copy of this judgment. Government shall also sanction the petitioner the arrears of wages in terms of the said Government W.P.(C).25944/2008 11 order as also the guidelines laid down by the Division Bench of this Court in W.A.1863/2004. Writ petition is disposed of as above. V.GIRI, Judge mrcs