IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WP(C).No. 2060 of 2007(T) ------------------------------ PETITIONER: ------------------ M.A. SUJATHA, SWEEPER ON DAILY WAGES, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REGIONAL CENTRE,KOYILANDY, KOZHIKODE-673 330. BY ADV. SRI.N.SUGATHAN SMT.VARSHA BHASKAR RESPONDENTS: ---------------------- 1. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REPRESENTED BY THE REGISTRAR, KALADY, ERNAKULAM-683 574. 2. THE SYNDICATE OF SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REPRESENTED BY THE VICE-CHANCELLOR, KALADY, ERNAKULAM-683 574. 3. THE DIRECTOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REGIONAL CENTRE, KOYILANDY, KOZHIKODE-673 330. 4. THE STATE OF KERALA, REPRESENTED BY THE ADDL.CHIEF SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 5. P.M. RAMAKRISHNAN, CLERICAL ASSISTANT, NOW RE-DESIGNATED AS PART-TIME CONTINGENT SWEEPER, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REGIONAL CENTRE,KOYILANDY, KOZHIKODE-673 330. R1 & 2 BY ADV. SRI.B.S.KRISHNAN, SENIOR ADVOCATE SRI.K.ANAND, SC, SANSKRIT UTY. SMT.LATHA KRISHNAN,SC,SANSKRIT UTY. R1 TO 3 BY SRI.P.K.VIJAYAMOHANAN,SC,SANKARACHA.UTY SRI.P.S.NISHIL,SC,SREE SANKARACHARYA UTY R4 BY GOVT. PLEADER SRI. DILEEP MOHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2060 of 2007(T) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE APPOINTMENT ORDER NO.AD.A2/G/174/KOY DATED 16.4.2003 OF THE 3RD RESPONDENT. P2 : COPY OF LETTER NO.PLD/6335/04 SSUS DATED 30.10.2004 OF THE 2ND RESPONDENT. P3 : COPY OF THE EXPERIENCE CERTIFICATE DATED 3.3.2006 ISSUED BY THE 3RD RESPONDENT. P4 : COPY OF THE EXPERIENCE CERTIFICATE DATED 5.1.2007 ISSUED BY THE 3RD RESPONDENT. P5 : COPY OF G.O.(P) NO.501/2005/ FIN. DATED 25.11.2005. P6 : EXTRACT OF MINUTES OF THE SYNDICATE MEETING HELD ON 27.1.2006. P7 : COPY OF ORDER NO.AD.B/SWEEPER/SSUS/06 DATED 24.2.2006. P8 : COPY OF ORDER NO.JRA/44/95/SSUS /722 DATED17.3.1995 OF THE 1ST RESPONDENT. P9 : COPY OF MUSTER ROLL OF DAILY WAGED EMPLOYEES OF THE CENTRE FOR THE MONTH OF JANUARY 2006. P10 : COPY OF ATTENDANCE REGISTER OF DAILY WAGES EMPLOYEES FOR THE MONTH OF FEBRUARY 2006. P11 : COPY OF ATTENDANCE REGISTER OF STAFF OF THE CENTRE FOR THE MONTH OF DECEMBER 2006. P12 : COPY OF ATTENDANCE REGISTER OF DAILY WAGE EMPLOYEES OF THE CENTRE FOR THE MONTH OF DECEMBER 2006. P13 : COPY OF REPRESENTATION DATED 16.3.2006 TO THE 1ST RESPONDENT. P14 : COPY OF LETTER NO.AD.A2/SMN/168/2006/KOY DATED 16.3.2006 OF THE 3RD RESPONDENT. P15 : COPY OF REPRESENTATION DATED 6.6.2006 TO PRO-VICE-CHANCELLOR OF THE UNIVERSITY. P16 : COPY OF LETTER NO.20116/B4/2006/H.EDN. DATED 7.8.2006 OF THE 4TH RESPONDENT TO 1ST RESPONDENT. RESPONDENTS' EXHIBITS: N I L // TRUE COPY // P.A. TO JUDGE. app/- S. SIRI JAGAN, J ============ WP(C) No.2060/2007 =============== Dated this the 20th day of July 2009. J U D G M E N T =========== By Ext.P1 order dated 16.4.2003, the petitioner was appointed as a part time sweeper on daily wage basis at the rate of Rs.60/- per working day, in the Regional Centre, Koyilandy, of the Sree Sankaracharya University of Sanskrit. By Ext.P2 dated 30.10.2004, her part time appointment on daily wages was converted to full time on daily wages with effect from 1.11.2004. Ext.P3 and P4 are the experience certificates issued to the petitioner for two different periods. While so in accordance with the judgment of this court in Mercy V. State of Kerala [2004 (2) KLT 848] and writ appeal No.1863/2004, the Government of Kerala revised the norms for calculating sweeping area in Government offices and regularization of the service of the existing casual sweepers. In the meeting WP(C) No.2060/2007 2 of the second respondent Syndicate of the university held on 27.1.2006, the university decided to adopt Ext.P5 norms for the university also. Pursuant to Ext.P7 order, the university regularized the services of 34 employees as sweepers in various offices. In the same, for Koyilandy Regional Center, the 5th respondent is shown as the sweeper, whose services have been regularized. Petitioner's name is not included, although she was the existing sweeper of Quilandy Regional Center. According to the petitioner, the 5th respondent was appointed as a clerical assistant by Ext.P8 order dated 17.3.1995. Ext.P9 extract from the muster roll of daily wage employee is produced by the petitioner to show that the 5th respondent has been engaged as a clerical assistant for the month of January 2006. Again in Ext.P10 attendance register also, the 5th respondent is shown as clerical assistant and the petitioner is shown as the sweeper for the month of February 2006. Ext.P11 is another muster roll for the month of December 2006 wherein the 5th respondent is WP(C) No.2060/2007 3 shown as part time sweeper, whereas the petitioner is shown in Ext.P12 muster roll as sweeper. Petitioner filed Ext.P13 representation before the registrar of the university as well as Ext.P15 representation before the Government, which was forwarded by the Government to the university as per Ext.P16. Having evoked no response from the university to the representations of the petitioner, the petitioner has filed this writ petition seeking the following reliefs:- i) to issue a writ of certiorari or any other appropriate writ or order quashing Ext.P7 order in so far as it relates to the regularisation of the service of the 5th respondent as part-time contingent sweeper; ii) to issue a writ of mandamus or any other appropriate writ or order directing respondents 1 and 2 to regularise the service of the petitioner as part-time contingent sweeper with effect from 16.4.2003 and to grant her all consequential benefits; iii) to stay all proceedings for terminating the service of the petitioner as sweeper on daily wages; and iv) to issue such other appropriate writ, order or directions as this Hon'ble Court may deem just and proper to issue in the circumstances of the case. WP(C) No.2060/2007 4 2. A counter affidavit has been filed by the 1st respondent taking the stand that although the 5th respondent was appointed as a clerical assistant. According to the 1st respondent, the 5th respondent was also doing duties of sweeper and since he had done duty of a sweeper prior to the appointment of the petitioner as sweeper, he was preferred to the petitioner for regularization in service. It is further stated in the counter affidavit that the integrated cadre of last grade employees include peons / watch man / lascar / cook / gardener / sweeper / cleaner and that clerical assistant is also treated as class IV employee. Therefore according to the 1st respondent, there is no illegality in regularising the 5th respondent as part time contingent sweeper in the 3rd respondent, Regional Center of the University. 3. A reply affidavit is filed by the petitioner controverting the averments in the counter affidavit. Both in the writ petition as well as in the reply affidavit, the petitioner has categorically averred that the 5th respondent WP(C) No.2060/2007 5 had not worked as a sweeper in the university even for a single day. It is also pointed out that the post of clerical assistant is not included in the integrated cadre of last grade employees. It is submitted that the integrated cadre of last grade employees consists only of peon / watch man / lascar /cook /gardener / sweeper / cleaner in the scale of pay of Rs.775 - 1065, whereas the post of clerical assistant is a promotion post for the integrated cadre of last grade employees having 10 years service with SSLC qualification based on seniority. The scale of pay of clerical assistant is 950-1500. It is also pointed out by the petitioner that as per the Sree Sankaracharya University of Sanskrit Statutes 1997, class III posts carry the pay of Rs.900/- in the minimum and above per month in the scale of pay and class IV posts carry the scale of pay of minimum of Rs.600/- and above per month. Therefore the petitioner would contend that the averments in the counter affidavit that the post of clerical assistant is in Class IV is clearly wrong. The petitioner therefore reiterates her claim for regularisation WP(C) No.2060/2007 6 in service as the existing sweeper in accordance with Ext.P5 Government order read with Ext.P6 resolution of the syndicate. 4. I have considered the rival contentions. 5. The facts except as to whether the 5th respondent worked as a sweeper or not and whether the post of clerical assistant is in the integrated category of last grade servants, is not disputed before me. Therefore what I have to consider is as between the petitioner and 5th respondent who is entitled to regularisation in service in accordance with Ext.P5 read with Ext.P6. Throughout Ext.P5, the Government speaks of regularisation of the existing casual sweepers. Therefore it is abundantly clear that Ext.P5 contemplates regularisation of service of existing casual sweepers. As I have already stated, the fact that the petitioner was the existing sweeper of the Koyilandy Regional Center is not disputed. It is also not disputed that the 5th respondent was working as a clerical assistant. When it is proved that 5th respondent was appointed as a WP(C) No.2060/2007 7 clerical assistant and that the time of regularisation he was working as a clerical assistant, it is the onus of the 5th respondent to prove that he had at any time worked as a sweeper in the Regional Center. No document whatsoever has been produced to substantiate the said averments in the counter affidavit. On the other hand, the petitioner categorically asserts that the 5th respondent never worked as a sweeper even for a single day and going by normal human conduct, a clerical assistant would not in the normal course work as a sweeper. I find that in the counter affidavit, the 1st respondent has gone to the extent of saying a wrong thing that the clerical assistant is treated as class IV and is part of the integrated cadre of last grade. In view of the statutes which have been noted above, which is not disputed before me, the said averments are clearly wrong. In the statutes, the post of clerical assistant is included as a class III post, which is shown as a promotion post for integrated cadre of last grade employees. From the above, I am satisfied that petitioner as the existing sweeper of the WP(C) No.2060/2007 8 Regional Center, Koyilandy is entitled to be regularised in service in accordance with Ext.P5 and P6 in preference to the 5th respondent. Accordingly, Ext.P7 to the extent the 5th respondent has been regularised as sweeper of the Quilandy Regional Centre is quashed. The 1st respondent is directed to regularise the services of the petitioner as the part time contingent sweeper of the Quilandy Regional Centre on daily wages with effect from the date of her original appointment, as done in Ext.P7 Orders in this regard shall be issued as expeditiously as possible at any rate within one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE app/- WP(C) No. 2060/2007 9 The words “on daily wages with effect from the date of her original appointment” occurring in lines 8 & 9 of page 8 of the judgment dated 20/07/2009 in WPC(C) 2060/2007 are deleted as per order dated 23/10/2009 in I.A Nos. 12688/2009 & 13066/2009 in WP(C) 2060/2007 Registrar (Judicial)