IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34509 of 2008(G)
1. VINOD K.U.,
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
2. DISTRICT COLLECTOR, IDUKKI
3. TAHSILDAR
4. SURESHKUMAR K.N
5. RAMADEVI P.R.
6. MARYKUTTY THOMAS
7. K.U.ANTO
For Petitioner :SRI.KALEESWARAM RAJ
For Respondent :SRI.K.S.HARIHARAPUTHRAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :23/01/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) Nos.34509, 34511
& 34542 of 2008
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Dated this the 23rd day of January, 2009.
JUDGMENT
These three writ petitions concern challenge against Ext.P3 order by
whereby newly selected persons have been appointed in the place of the
petitioners. They are seeking for a direction to the Government to pass
appropriate orders regularising them in service.
2. In Writ Petition No.34509/2008 the petitioner is working as a Part-
time Sweeper in the office of Pampadumpara Village Office, Idukki District,
since the year 2001. The sweeping area covered by the petitioner is 107.71
sq. ms. which is evidenced by Ext.P2 certificate. He had filed an earlier
writ petition, viz. W.P.(C) No.17466/2003 wherein directions have been
issued in the matter of payment of salary, etc. According to the petitioner,
he is entitled for regularisation as per the directions issued in G.O.(P)
No.501/2005/Fin. Dated 25.11.2005 and even if regularisation is not
granted, he is entitled to get pay protection as per the said order. Therefore,
he cannot be replaced by a fresh hand.
3. In Writ Petition No.34511/2008 the petitioner is working as a Part-
Wpc 34509, 34511
& 34542/2008 2
time Sweeper in the office of Konnathadi Village Office, Idukki District.
Ext.P1 is the judgment in Writ Petition No.2309/2003 wherein certain
reliefs have been granted in favour of the petitioner. She is working as a
Part-time Sweeper since 1999. The sweeping area covered by the petitioner
is evidenced by Ext.P2 which shows that the same is 102.67 sq. ms. It is
stated that she is entitled for regularisation in terms of G.O.(P)
No.501/2005/Fin. Dated 25.11.2005. As per Ext.P3, the District Collector
has sponsored the names of three candidates for appointment who have
been sponsored by the Employment Exchange. The persons sought to be
appointed have been impleaded as respondents 4 to 7 in this writ petition.
4. In Writ Petition No.34542/2008 the petitioner is working as a Part-
time Sweeper in Vandanmedu Village Office, Idukki District. She is
working in the said post since 2001 and the sweeping area covered by the
petitioner is 114.46 sq.ms. Ext.P1 is the judgment in an earlier writ
petition filed by the petitioner, viz. Writ Petition No.22852/2003 which was
disposed of in his her favour. She is also seeking regularisation in terms of
the relevant Govt. Order.
5. Heard learned counsel for the petitioner, learned Govt. Pleader and
learned counsel appearing for the party respondents.
Wpc 34509, 34511
& 34542/2008 3
6. Interim orders have been passed in these three writ petitions to
retain the petitioners in the present stations and therefore the contesting
respondents have not been engaged pursuant to Ext.P3.
7. Learned counsel for the petitioner submitted that the petitioners
are covered by the scheme framed by the Government as per G.O.(P)
NO.501/2005/Fin. Dated 25.11.2005. As per the said order, the
Government have comprehensive scheme for regularistion of Part-time
sweepers. This was pursuant to the directions issued by this court in W.A.
No.1863/2004 and connected cases. The Government cancelled G.O. Dated
2.8.2005 and revised orders have been passed as per G.O. Dated
25.11.2005. Going by para 8 of the said order, “for the regularisation of the
existing casual sweepers (where the sweeping area exceeds 100 sq. mtrs.)
creation of posts of part-time contingent employees depending on the
sweeping area has to be made. The sweeping area will be calculated in
accordance with the guidelines given in the appendix. ……….. The
Administrative Department in Government shall then issue orders before
21.1.2006, in consultation with the Finance Department for the creation of
the post of part-time sweeper in relaxation of the economy orders and
absorbing the existing casual sweeper by giving the remuneration of
Wpc 34509, 34511
& 34542/2008 4
Rs.1250 plus DA per month ( for area of 100 sq. mtrs. and above but below
400 sq. metrs) and Rs.1500 plus DA per month (for area of 400 sq. metrs.
and above but below 800 sq. metrs). The posts shall be created with effect
from the date of appointment of the incumbent as Casual Sweeper or from
18.6.2001 whichever is later. In the case of those covered by earlier orders
of the High Court for regularisation, the relevant date shall be the date of
appointment of the incumbent as Casual Sweeper or the date 3 years
preceding the date of such judgment ordering regularisation, whichever is
later.” It is therefore pointed out that the creation of the post of Part-time
contingent sweeper has to be done on the basis of the above guidelines and
the existing incumbents are entitled for regularisation. Therefore, Ext.P3
order issued by the District Collector in so far as it affects the right of the
petitioners, cannot be upheld.
8. In the counter affidavit filed by the contesting respondents, the
stand taken is that they have been appointed through a proper selection
process.
9. In these cases, the petitioners have produced the judgments
rendered by this court in cases where they were parties earlier. Pursuant to
the adoption of revised norms as per Govt. Order dated 25.11.2005, the
Wpc 34509, 34511
& 34542/2008 5
sweeping area has been assessed and all the required details have been
forwarded for their regularisation. The steps for regularisation have to be
taken by the respective authorities and by the Government. In the counter
affidavit filed in W.P.(C) No.34542/2008, it is admitted in para 4 that the
proposal for the same has been submitted to the Land Revenue
Commissioner by letter dated 7.2.2007.
10. The petitioners cannot be denied the benefit of G.O. Dated
25.11.2005, if they are eligible as per the scheme. Therefore, they cannot be
replaced by fresh hands pending consideration of their claim. If the post is
created and if the sweeping area is above the limit shown in the Govt.
Order, the petitioners are entitled for benefit of regularisation. Otherwise,
they will be entitled for the pay protection. Therefore, in either of these
contingencies they cannot be replaced by fresh hands. In that view of the
matter, the order Ext.P3 by which fresh hands are sought to be appointed in
their place, cannot be upheld. Therefore, the petitioners cannot be
terminated to provide persons appointed by Ext.P3 in any of the offices
where they are working.
11. There will be a direction to the first respondent to pass orders on
the claim for regularisation of the petitioners in accordance with G.O.(P)
Wpc 34509, 34511
& 34542/2008 6
No.501/2005/Fin. Dated 25.11.2005 after considering all aspects. The same
shall be done within a period of three months from the date of receipt of a
copy of this judgment. Respondents 2 and 3 shall forward all the required
documents to the first respondent within one month from the date of receipt
of a copy of this judgment for taking appropriate action by the first
respondent, along with the required reports and the sweeping area
certificates. The contesting respondents have no right to be appointed in the
offices where the petitioners are working as sweepers. It is so declared. But
this will not stand in the way of the consideration of the claim of
respondents 4 to 7 in any other vacancies, if any, which shall be considered
by the second respondent in accordance with law and the judgment above
rendered, will not stand in the way of considering the same.
The writ petitions are disposed of as above. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/