IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 2ND NOVEMBER 2007 / 11TH KARTHIKA 1929 WP(C).No. 19186 of 2005(H) --------------------------------------- PETITIONER: ------------------- 1. SUJATHA K., MARAMKANDY MEETHAL, KAKKODI P.O., KOZHIKODE (PART TIME SWEEPER, ICDP SUB CENTER, KAKKODI, KOZHIKODE DISTRICT). 2. KUKNHIKRISHNAN K.M., KURUKKITHAZHA MEETHAL, MANDARATHOOR P.O., KOZHIKODE. (PART TIME CASUAL SWEEPER, ICDP SUB CENTER, KURUNTHODI, KOZHIKODE DISTRICT). 3. SANTHA KUMARI P.K., PURATHOLIKKAL, PANTHEERANKAVU P.O., KOZHIKODE. (PART TIME SWEEPER, ICDP SUB CENTER, PERUVAYAL, KOZHIKODE DIST.). 4. THANKAM T.P., POTTAYIKKAL, VAIDYARANGADI, KOZHIKODE. (PART TIME CASUAL SWEEPER, ICDP SUB CENTER, VAIDYARANGADI, KOZHIKODE). 5. BINDU T.M., CHALILPARAMB HOUSE, PAYANBRA P.O., KOZHIKODE. (PART TIME CASUAL SWEEPER, ICDP SUB CENTER, KURUVATTOOR, KOZHIKODE). BY ADV. SRI.DEVAN RAMACHANDRAN. RESPONDENTS: ------------------------ 1. DISTRICT COLLECTOR, KOZHIKODE. 2. LIVE STOCK INSPECTOR, REPRESENTED BY ASST. PROJECT OFFICER, R.A.I.C. KOZHIKODE. W.P.(C). NO.19186/2005-H: 3. DISTRICT ANIMAL HUSBANDRY OFFICER NEAR MALABAR CHRISTIAN COLLEGE, KOZHIKODE. BY GOVERNMENT PLEADER SRI. NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2007,ALONG WITH W.P.(C). NO. 26616/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.19186/2005-H: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE JUDGMENT IN W.P.(C). NO. 14854/2004-R DTD. 18/06/2004. EXT.P.2: COPY OF THE REPRESENTATION FILED BY THE PETITIONER TO THE R.2 RESPONDENT DTD. 31/07/2004. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. V. GIRI ,J. ----------------------------------- ------------- WP(C).Nos. 19186 of 2005, 32617, 21817, 8036 and 30728 of 2006, 22822,14107,14108,14109,138 28,18934, 15823,15822, 22860, 10423, 21841, 25155, 11664, 26616, 27252 and 226 of 2007 ------------------------------------- ------------- Dated this the 2nd day of November, 2007 JUDGMENT The petitioners in all these cases are working in different offices in government departments. Common issues are posed for consideration in these writ petitions and therefore they are being disposed of by this common judgment. 2. Common issues are dealt with under one head and the individual petitions are taken up for consideration and disposed of considering the factual situation arising in each case. Part-time sweepers are treated as Part-time contingent employees and their method of appointment and conditions of service are governed by the Special rules for Kerala Part-time WP(C).NO.19186/05 & conn.cases. 2 Contingent Service (hereinafter referred to as `special rules’). Recruitment to such services is from persons who are sponsored by the Employment Exchange. Obviously, this would be against the sanctioned posts. Therefore the wages and other benefits drawn by them would be governed by the pay revision orders issued by the government from time to time. 3. But for years together, there has been another set of sweepers who are engaged in various government offices on casual basis, and sometimes on daily wages. By a government order issued in 1979, as G.O.(P)500/1979/Fin. dtd.2.6.1979, government revised the remuneration payable to Sweepers/Cleaners engaged for sweeping/cleaning areas of less than 200 sq.metres. Where the area was less than 200 sq.metres, but more than 100 sq.metres, they were entitled to a consolidated remuneration WP(C).NO.19186/05 & conn.cases. 3 of Rs.35/=. If the area is less than 100 sq.metres, they were entitled to a consolidated remuneration of Rs.30/=. By orders issued from time to time, the wages were revised. 4. By G.O.(P)3000/98/Fin. dtd.25.11.1998, government issued orders revising the scale of pay of Part-time Contingent employees. This was on acceptance of the recommendations of the Pay Revision Commission. Remuneration of the contingent employees has always been pegged to the sweeping area serviced by them. But as per the said order, if the sweeping area is 400 sq.metres above, but below 800 sq.metres, the rate of remuneration was revised to Rs.1500/= per month + D.A. In the case of the Part-time sweepers/Cleaners, whose area of work is below 400 sq.metres, the revised rate of remuneration was fixed at Rs.1250/- + D.A. 5. In the meanwhile, the remuneration being WP(C).NO.19186/05 & conn.cases. 4 paid to Sweepers/Cleaners other than the contingent staff did not demonstrate any certainty as such. Those were not on a par with the remuneration which was revised as per G.O(P) 3000/1998. Several casual/daily wage employees approached this Court. Essentially, their contention at that point of time was that they are doing the same work as contingent staff and therefore their wages must also be similar. In several judgments, this Court upheld the contentions and directed that the remuneration of the said petitioners must be on a par with that of contingent staff. In several cases, directions were issued by this Court in favour of casual/daily wage sweepers enabling them to draw wages as per the rates revised as per GO(P) 3000/1998. 6. The issue as to whether such casual sweepers or daily wage sweepers, as the case may be, should be regularized or not was really WP(C).NO.19186/05 & conn.cases. 5 not a matter which was considered in any of those judgments by this Court. It therefore came about that there were several persons who were continuing to serve as casual or daily wage sweepers in several departments of the government. Those persons who came to this Court sought for a direction that they should be paid wages on a par with contingent staff. They were being paid wages at different levels, as noted above and there was no uniformity. This probably was because most of those persons were in the unorganized sector. They are not included in any category and therefore there was no uniformity in the application of the conditions of service to these persons. 7. Though as per GO(P) 390/2003/Fin. dtd.17.7.2003, government issued a direction that such casual employees should be engaged only for a period of two months and disengaged WP(C).NO.19186/05 & conn.cases. 6 thereafter, the government itself had by a subsequent order, i.e. G.O.(P)500/2003 dated 25.9.2003, frozen government order GO(P) 390/2003. In effect, the casual sweepers/daily wage sweepers continued to serve in different departments all over the State. 8. A batch of writ petitions came to be decided by a learned judge of this Court in Mercy v State of Kerala (2004(2) KLT 848). This Court issued certain directions as contained in paragraph-11 of the said judgment, which reads as follows: "Depending on the area to be swept and cleaned, Government is perfectly justified in fixing their wages and taking note of the small area in certain Government offices, the Government is also justified in fixing only a consolidated wages of Rs.600/= as it stands now in the case of those offices where the area to be swept WP(C).NO.19186/05 & conn.cases. 7 is only below 100 sq.mts. Except in the case of below 100 sq.metres sweeping area there has to be a sanctioned post. Appropriate orders shall be passed by the Government within six months from the date of production of a copy of the judgment." This Court further went on to direct the State and the controlling officers to see that the Part- time sweepers, who have not approached this Court, as covered by the decision, are paid their arrears as calculated on the basis of the 1997 pay revision with effect from 1.3.1997. Mercy v State of Kerala was rendered on 18.3.2004. 9. The matter was taken up before a Division Bench of this Court. In Writ Appeal No.2140/2004 and connected cases, the main issue considered by the Division Bench related to the date on which the arrears as per the revised scale was to be paid in favour of the casual/daily wage sweepers. WP(C).NO.19186/05 & conn.cases. 8 Division Bench formulated the issue, which is considered in paragraph-15 of the judgment in W.P.(C)30927/2003 and connected cases as follows: "Since there is also a grievance regarding payment of wages including arrears, there will be a direction to the State and the controlling officers to see that the petitioners in these cases and also those Part-time sweepers who have not approached the Court, but covered by this decision, are paid their arrears as calculated on the basis of the 1997 pay revision order, with effect from 1.3.1997. This shall be done within a period of three months from the date of production of a copy of judgment. It is also made clear that in the case of individual is also made clear that in the case of payment of salary even prior to the 1997 pay revision order, they shall be governed by the respective judgments. But in any case no Part-time sweeper shall be denied the WP(C).NO.19186/05 & conn.cases. 9 benefits of 1997 pay revision orders. If any case, Part-time sweepers have been terminated based on G.O.(P) No.390/03/Fin. dtd. 17.7.2003 they shall be re- engaged forthwith and they will also be governed by this judgment". 10. The Division Bench noticed that the sweeping area is not a matter to be determined by this Court. That may depend upon the area which is expected to be swept taking into account the requirements of the office. Determination of the sweeping area was left to the wisdom of the government as such. 11. The Division Bench ultimately went on to hold that insofar as the casual/daily wage employees who were employed prior to 6.10.2003, (which was treated as a cut off date of Mercy’s case, on the basis of a circular issued by the Revenue Department) were concerned, they are WP(C).NO.19186/05 & conn.cases. 10 entitled to wages on a par with contingent staff. Division Bench interfered with the direction of the learned single judge in Mercy's case and went on to hold that the eligible staff will be entitled to arrears only for a period of three years prior to the date of the judgment passed in each one of those cases. 12. Taking note of the general observations made by the Division Bench, the government came to issue GO(P) 501/2005 dtd. 25.11.2005 which is intended to lay down the guidelines regarding "regularization of the existing eligible casual sweepers and appointments against future arising vacancies of sweepers/cleaners in government service”. 13. I do not propose to reproduce the entire government order as such. It will suffice, if reference is made to certain crucial parts of the said order. Clause – 8 thereof provides for the WP(C).NO.19186/05 & conn.cases. 11 regularization of the existing casual sweepers, where the sweeping area exceeds 100 sq.metres. Creation of posts of part-time contingent employees will depend upon the sweeping area. Sweeping area is to be calculated in accordance with the guidelines given in the appendix. Mode of determination of sweeping area is mentioned therein. For the purpose of regularization of the existing casual sweepers, the measurement is to be made by the PWD officials after notice to the concerned person. If fixation of the area exceeds 100 sq.meters, and if it is found that there is no post of part-time sweeper sanctioned in the office in question, but if there is a casual sweeper being engaged, the head of the office will have to take up this matter with the government and sanctioning of the post is to be done only by the government, taking into account the guidelines regarding creation of posts of Part-time contingent WP(C).NO.19186/05 & conn.cases. 12 sweepers which are referred to in the remaining portion of the government order. 14. Clause-9 of the order states that if, on re- fixation of area, it is found to be less than 100 sq.metres (requiring only a casual sweeper @ Rs.600 p.m.), and if there is a casual sweeper already working, he/she shall continue without disruption, getting only Rs.600 per month. Clause 11 of the order, which is the subject matter of considerable debate, inter alia provides that the guidelines in the Appendix shall also be applied to offices which already have part-time contingent sweepers. If consequent to the re-fixation of the area in such offices, in accordance with the guidelines, the sweeping area increases from below 400 sq.metres to above 400 metres, the part-time sweeper concerned shall be entitled to the higher remuneration of Rs.1500/- p.m.+ D.A., but with effect from the date of the government WP(C).NO.19186/05 & conn.cases. 13 order only. If the area reduces from above 400 sq.metres to below 400 metres, the remuneration of the particular part-time sweeper shall not be reduced from Rs.1500 + D.A. The existing incumbent shall continue to get what he was getting. But the employee posted against the next vacancy should be given wages as per the rules. If, on fixation, the sweeping area reduces from above 100 sq.metres below 100 sq.metres the remuneration of the existing part-time sweeper, if he is getting Rs.1250/= per month + D.A. shall not be reduced. He shall continue to get what he was getting. The next vacancy in the post should be filled up by a casual sweeper only by paying 600/= per month. 15. Creation of the post of Part-time Contingent sweeper in newly formed offices is to be done strictly on the basis of the new guidelines in the Appendix. If the sweeping area is above WP(C).NO.19186/05 & conn.cases. 14 800 sq.metres, but below 900 sq.metres, a part- time contingent sweeper and a casual sweeper will also be engaged. 16. The appendix contains the guidelines of the determination of the sweeping area. Though there has been a suggestion that the appendix has not been logically laid down and that some of the areas to be swept have been excluded arbitrarily, I may straight away note, especially especially in the light of the decision of the Division Bench, that determination of the sweeping area is within the domain of the government. As to what will come within the sweeping area and what will be excluded there from are obviously not matters which should be decided by this Court. Nevertheless, I have also found on a perusal of the appendix that there is no artificial exclusion of any area, which forms an integral part of office premises, from the determination of the sweeping area to such an WP(C).NO.19186/05 & conn.cases. 15 extent, where the application of the guidelines would result in an absurdity. What has been laid down are guidelines and obviously the impact of the same would be different in different factual situations. But the validity of the guidelines cannot be tested by reference to an aberration in a particular case. I should also take note of the fact that though the validity of the guidelines and appendix was challenged before this Court, the challenge was not accepted by this Court as evidenced from the decision reported in Pankajam v State of Kerala (2006(4) KLT short notes page 43). Thus, the determination of the sweeping area will have to be made as per the guidelines laid down in GO(P) 501/2005. This order has been issued by the government in exercise of its general executive power. I also make it clear that variation of the guidelines contained in the appendix can be done only by another order of a WP(C).NO.19186/05 & conn.cases. 16 similar nature and character. I am constrained to make this observation because the learned counsel for the petitioner made reference to certain other circulars which are stated to have been issued subsequent to GO(P) 501/2005. Those circulars are not challenged in all these writ petitions as such. At any rate, I do not think it is necessary to consider the validity of such individual circulars. The sweeping area is to be determined as per the appendix to GO(P) 501/2005 and this will prevail as long as the said order prevails as such. Any circular issued either prior to or after G.O.(P) 501/2005 will be subject to the Government Order. This is not to say that the government is bereft of the power to modify the guidelines. But it an be done only by orders passed by the government, and not by circulars or inter office communications. 17. The crucial issue which is raised for the WP(C).NO.19186/05 & conn.cases. 17 determination of this Court is centered around clause-9 and clause 11 of GO(P) 501/05. Learned counsel for the petitioners submitted that the government order as such is intended to lay down the guidelines regarding the regularization of all existing eligible casual sweepers and appointments against future arising vacancies of sweepers/cleaners in government service. Clause- 11 will have to be understood in the context of the revised guidelines incorporated in the appendix to the government order. The appendix therefore affords power to the government to re-determine the sweeping area in any government office notwithstanding a prior assessment as such. Such re-assessment could entail an increase in the sweeping area or reduction therein. But re- assessment is a part of the legitimate exercise that could be undertaken as per the government order with reference to the appendix. If there is an WP(C).NO.19186/05 & conn.cases. 18 increase in the sweeping area consequent upon the re-fixation, no dispute would arise therefrom. If on re-fixation, the sweeping area exceeds 100 sq.metres, the G.O. provides that if the issue is taken up with the head of the department, government will take an appropriate decision as regards creation of the post of a part-time contingent sweeper. The guidelines also take care of a situation where the sweeping area on re- fixation is found to exceed 400 sq.metres. Obviously none of the petitioners could harbour any grievances in the event of an upward change of the sweeping area consequent upon re-fixation as such. 18. Mr.Nandakumar learned senior government pleader submits that the term "Part- time contingent sweeper" on one hand and "casual sweeper" on the other hand are distinctly and differently used in same government order and WP(C).NO.19186/05 & conn.cases. 19 therefore they must be attributed their respective connotation. Mr.Nandakumar submits that the protection of pay contemplated in clause-11 of the government order in the event of a change in sweeping area on a re-fixation of the same is available only to a part-time sweeper meaning thereby that the protection of wages as such will be available only to regular part-time contingent staff working as a sweeper in any government office as such. Protection of wages as contemplated by clause 11 will not come to the aid of casual sweepers like the petitioners in these cases; such persons will be taken care of by clause-9 of this rule, wherein it is stated that if on a re-fixation of the area, it is found to be less than 100 sq.metres and if there is a casual sweeper already working, he shall continue without disruption getting only Rs.600/= per month. WP(C).NO.19186/05 & conn.cases. 20 19. Reference is also made to para 12 and 14 of the order to contend for the position that protection of wages under clause 11 is available only to part time contingent sweepers and not to casual sweepers like the petitioners. 20. The issue is not capable of easy resolution. Mr.Nandakumar is right when he says that the terms “part time contingent sweepers” and “casual sweepers” are distinctly and differently used in the same Government order; possibly in the same paragraph. They should therefore be construed differently. It is also necessary to reconcile clause 9 of the GO with clause 11 thereof. But in my view what should inspire this court in deciding this dispute is what was the intention of the Government in bringing forth the order. Reference to various orders which are referred to in GO(P).No.501/2005 show that all of them deal with fixation of pay of sweepers, some of them refer to part time contingent workers and some of them refer to casual sweepers. The immediate provocation was the judgment in Mercy as modified by the WP(C).NO.19186/05 & conn.cases. 21 Division Bench in W.A.No.1863/2004 and connected cases. The said judgment obviously deals with the claim by casual sweepers for wages on a par with what was being paid to the contingent staff. The Division Bench also dealt with the power on the part of the Government to determine the sweeping area as such. As noted above Appendix to the Government order is an integral part of the same and it is obviously within the domain of the Government to determine. What could be the sweeping area and what is beyond it. Coupled with the power to determine the sweeping area, there is also a power to refix it. The refixation could entail an increase in the sweeping area or reduction therein. If on refixation of the sweeping area, there is reduction of sweeping area, will it entail a modification of the wages of part time contingent employee who is otherwise governed by the special rules in this behalf?. A part time contingent sweeper is a regular contingent employee in the Government service and the salary and other benefits due WP(C).NO.19186/05 & conn.cases. 22 to such a Government servant will be governed by the orders issued by the Government from time to time accepting the recommendations of the pay revision commission. Assuming that there is a reduction of the sweeping area in any Government office consequent upon refixation, the same by itself cannot result in a change of wages or a change in the pay scale that is available to such Government servant who is in the regular service of the government. In my view the Government, while issuing GO(P).No.501/2005 did not intend to tinker with the pay scales of regular staff appointed under the special rules but intended only to regularise the remuneration being drawn by the casual sweepers who are outside the purview of the special rules as such. If the direction in Mercy, as stated above, is reflected in GO(P).No.501/2005 then it is relevant to note that Mercy straight away directed parity of wages for casual sweepers with regular contingent staff. The Government makes a distinction between the two categories in the context of the sweeping WP(C).NO.19186/05 & conn.cases. 23 ares serviced by these two categories of employees and in the context of the method of recruitment, that is adopted in the case of contingent staff. The Division Bench interfered with Mercy only on two grounds. The first one related to the determination of the sweeping area. Mercy explained that the sweeping area will be determined as per the Government order by laying down the criteria in this behalf in para 13 and 14 thereof. The second aspect dealt with in Mercy related to parity of wages in so far as casual sweepers are concerned and the direction to pay arrears of wages with effect from 1.3.1997. The Division Bench held that the determination of the sweeping area is within the domain of the Government and the Appendix to GO(P).No.501/2005 is a direct result of the same. Refixation of the sweeping area is possible only because the Division Bench clearly laid down that determination of the sweeping area is within the domain of the Government. Mercy was not interfered with in any other respect. Therefore taking WP(C).NO.19186/05 & conn.cases. 24 into account the background of the order, the subject matter of the order as such and the attendant circumstances, I am of the view that clause 11 of the GO (P).No.501/2005 in so far as it protects the wages being drawn by the part time sweepers in the event of a refixation of the sweeping area must be extended to casual sweepers also. It is so declared. 21. Having indicated the manner in which the guidelines in GO(P).No.501/2005 are to be followed, I will deal with the writ petitions one by one in view of the slight difference in the factual situation. WP(C).No.8036/2006 The petitioners herein are Casual Sweepers working in different offices in Wayanad District. They had approached this court on earlier occasions and by Exts.P3 to P6 judgments this court directed that they should be paid wages on a par with the contingent employees. As per Exts.P10 to P12 certificates, the sweeping area is above 100 sq. meters. Subsequently, on a refixation it WP(C).NO.19186/05 & conn.cases. 25 was found as per Exts.P14 to P16 certificates that the sweeping area is reduced to below 100 sq. meters. In view of what is stated above and also what is held in Exts.P3 to P6 judgments the petitioners are entitled to draw wages, in accordance with clause 11 of GO(P). No.501/2005 and there shall be no reduction of wages, consequent upon