P.K. Kavitha vs State Of Kerala on 26 March, 2009

Kerala High Court
P.K. Kavitha vs State Of Kerala on 26 March, 2009




WP(C).No. 30811 of 2007(R)

                      ...  Petitioner


                       ...       Respondent



                For Petitioner  :SRI.M.V.THAMBAN

                For Respondent  :GOVERNMENT PLEADER


 Dated :26/03/2009

 O R D E R
                        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

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

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

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

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

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.)


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