IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30811 of 2007(R)
1. P.K. KAVITHA, W/O. SATHEESAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. DISTRICT COLLECTOR, ERNAKULAM.
3. THE SPECIAL TAHSILDAR (LA),
For Petitioner :SRI.M.V.THAMBAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :26/03/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C). No.30811/2007-R
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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
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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
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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
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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
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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
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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.)
ms