IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WP(C).No. 3738 of 2008(T) -------------------------------------- PETITIONER(S): ----------------------- MAYAKUMARI M., THUNDIVILAKATHU VEEDU, NEMOM P.O., THIRUVANANTHAPURAM DIST. (SWEEPER, WORKING AS OFFICE OF THE ASSISTANT ENGINEER, MINOR IRRIGATION SECTION, BALARAMAPURAM.) BY ADV. MR .PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): ----------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, WATER RESOURCES (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM. 3. ASSISTANT ENGINEER, MINOR IRRIGATION SECTION, BALARAMAPURAM. 4. ASSISTANT ENGINEER, BUILDING SECTION, NEYYATTINKARA. GOVERNMENT PLEADER MR.ANTON Y MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.3738/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE G.O.(P) NO.501/2005 FIN DT. 25.11.2005. P2:- COPY OF THE CERTIFICATE DT. 28.11.2006 ISSUED BY THE 4TH RESPONDENT. P3:- COPY OF THE SKETCH AND THE CALCULATION RESORTED TO BY THE 4TH RESPONDENT, FOR ARRIING AT THE SWEEPING AREA, AS 110.68 m2 IN RESPECT OF MINOR IRRIGATION OFFICE, BALARAMAPURAM. P4:- COPY OF THE LETTER NO.BSN 40/05 DT. 28.11.2006 WAS FORARDED BY THE 4TH RRESPONDNT TO THE 3RD RESPONDENT. P5:- COPY OF THE APPLICATION FOR CREATION OF PART TIME CONTINGENT SWEEPER IN THE PRESCRIBED FORM. P6:- COPY OF THE LETTER NO.A3-312/2006 DT. 25.4.2007. P7:- COPY OF THE LETTER NO.A3.312/2006 DT. 2.5.2007. OF THE ASSISTANT EXECUTIE ENGINEER. P8:- COPY OF THE PER LETTER NO.15500/A2/07/WRD DT. 8.10.2007. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 3738 of 2008-T - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of January, 2009. JUDGMENT The matter concerns the claim for regularisation of the petitioner as a Part-time sweeper in accordance with the Govt. Order, Ext.P1 dated 25.11.2005. She has been working as a Sweeper in the Office of the Asst. Engineer, Minor Irrigation Section, Balaramapuram from March 1995 onwards. According to the petitioner, the sweeping area of the office concerned is 110.68 sq. meters and therefore, as per the provisions contained in Ext.P1, she is entitled to be regularised, as a minimum sweeping area of 100 sq. meters confer such benefits. Ext.P2 is the certificate issued by the 4th respondent which shows that the sweeping area of the office is 110.68 sq. meters. According to the petitioner, a measurement has been carried out as provided in the appendix to Ext.P1. Ext.P3 is the copy of the sketch and calculation prepared by the fourth respondent which also tallies with the same. Thereafter, the details were forwarded to the Asst. Engineer as per Ext.P4. Therein, the total sweeping area is shown as 110.68 sq. meters. It appears that the application was resubmitted after curing the defects and finally by Ext.P8, the same has WPC 3738/2008 2 been disposed of by the Government with the endorsement that the total sweeping area is only 76.17 sq. meters and therefore the petitioner is entitled to be paid a sum of Rs.600/- per month (pre-revised). This is under challenge in this writ petition. 2. Learned counsel for the petitioner submitted that in the Appendix to Ext.P1, certain guidelines have been provided for determination of sweeping area. Particular reference is made to items 2 and 3 relating to calculation of the area covered by car porch, staircase, verandah, corridor, landing, etc. in cases they are exclusively used by the office in question and are being used by the office staff and/or the general public. The petitioner has clearly averred that that she is sweeping an area of 110.68 M2. The exclusion of the sweeping area covered by the car porch, toilet, etc. is illegal, contended the learned counsel. 3. In the counter affidavit filed by respondents 1 and 2, it is stated in para 3 that while calculating the total sweeping area of the office, the 4th respondent included the area of car porch and toilet portion and certified that the total sweeping area is 110.68 sq. meters and the guidelines as provided in Ext.P1 were not properly followed by the 4th respondent. It is also stated that there was a rechecking. 4. Going by the relevant guidelines stated in sub paras (ii) and (iii) of WPC 3738/2008 3 para 1 of Appendix to Ext.P1, in cases where the areas such as car porch, staircase, verandah, corridor, lading, etc. are in exclusive use of the office in question, the same will be one of the components which would be considered for calculating the total sweeping area. This is so in the case of toilets also. Therefore, the exclusion of the said components for calculating the total sweeping area is not correct. It appears that only sub para (i) of para 1 was considered. Of course, there is a general provision contained in para 1 (i). But when special circumstances are pointed out in sub paras (ii) and (iii), they will prevail over the general provisions in sub para (i). If that be so, the areas like car porch, staircase, toilets, etc. mentioned therein which are exclusively in use of the offices in question and form part of the sweeping area shall be included for the purpose of considering the question of regularisation of the petitioner. There is no case for the respondents that the area covered by the carporch, etc. are not in use by the office staff/general public. Hence, the exclusion of the said area is illegal. Further, the rechecking was done without notice to the petitioner. If that be so, the sweeping area will be above 100 sq. meters. In that view of the matter, the first respondent was not right in returning the same without passing orders creating a post of Part-time sweeper and regularising the petitioner to the said post. WPC 3738/2008 4 5. Ext.P8 is therefore quashed. There will be a direction to the first respondent to pass appropriate orders in the matter of regularisation of the petitioner, within two months from the date of receipt of a copy of this judgment and in the light of the findings rendered above. Consequential benefits shall be disbursed to the petitioner as provided under the circulars. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/