Allowed

B.S.Sheeja v. State of Kerala

Kerala HC30 May 2016WP(C)/20385/2011

Case brief

AI extract

What is this about?

Petitioner part-time sweeper challenged rejection of her regularisation claim. Court held she is entitled to regularisation under Government Orders of 2005 and 2010 as her appointment predated 25.11.2005, despite lacking five years of service, and directed fresh consideration.

What did the court decide?

Ext.P12 order quashed; direction to respondents to reconsider petitioner's case for regularisation under Exts.P2 and P13 and grant benefits within three months.

B.S.Sheeja Vs State of Kerala — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938

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WP(C).No. 20385 of 2011 (W)

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PETITIONER(S):

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B.S. SHEEJA, PART TIME SWEEPER, OFFICE OF THE EXECUTIVE ENGINEER, DIVISION -11, KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM, RESIDING AT 'UTHRADAM', PUMKUMOOD, VENKOD P.O., THIRUVANANTHAPURAM.

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BY ADVS. SMT.SREEDEVI KYLASANATH, SMT.SHALEENA RAJAN.

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RESPONDENT(S):

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1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOUSING (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.

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*2. THE KERALA STATE HOUSING BOARD, REPRESENTED BY ITS CHAIRMAN, SANTHI NAGAR, THIRUVANANTHAPURAM- 695 001. (CORRECTED)

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THE ADDRESS OF 2ND RESPONDENT IS CORRECTED AS

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KERALA STATE HOUSING BOARD, REPRESENTED BY ITS SECRETARY, SANTHI NAGAR, THIRUVANANTHAPURAM.

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*** VIDE ORDER DATED 31/08/2011 IN I.A. NO.14360/2011.**

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3. THE EXECUTIVE ENGINEER, KERALA STATE HOUSING BOARD, DIVISION NO.II, THIRUVANANTHAPURAM-695 001.

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R1 BY GOVT. PLEADER SRI.BABY THOMAS. R2 & R3 BY ADV. SRI.GEORGE BOBAN, SC.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 20385 of 2011 (W)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COPY OF THE AGREEMENT NO.39/2004 DATED 24/06/2004 ENTERED INTO BETWEEN THE PETITIONER AND THE 3RD RESPONDENT.

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EXT.P2 COPY OF THE G.O.(P) NO.501/2005/FIN DATED 25/11/2005. EXT.P3 COPY OF THE ORDER NO.H.B.O. 512AD/(C) 18849/05 DATED 23/11/2006 OF 2ND RESPONDENT.

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EXT.P3A COPY OF THE ORDER DATED 01/09/2006 OF 2ND RESPONDENT.

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EXT.P4 COPY OF THE LETTER DATED 13/03/2008 OF 2ND RESPONDENT.

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EXT.P5 COPY OF THE PETITIONER'S REPRESENTATION DATED 07/07/2009 SUBMITTED BEFORE 2ND RESPONDENT.

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EXT.P6 COPY OF THE REPRESENTATION DATED 01/12/2010 SUBMITTED BY PETITIONER ALONG WITH THREE OTHERS.

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EXT.P7 COPY OF THE G.O.(MS) NO.09/2011/HOUSING TVM. DATED 01/03/2011. EXT.P8 COPY OF THE JUDGMENT IN WP(C).NO.6314/09. EXT.P9 COPY OF THE REPRESENTATION SUBMITTED BEFORE THE HONOURABLE MINISTER, HOUSING DEPARTMENT DATED 08/03/2011.

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EXT.P10 COPY OF THE REPRESENTATION SUBMITTED BEFORE 2ND RESPONDENT DATED 08/03/2011.

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EXT.P11 COPY OF THE JUDGMENT IN WP(C).NO.8391/2011 DATED 25/03/2011. EXT.P12 COPY OF THE GOVERNMENT ORDER NO.40/11/HSG. DATED 02/06/2011. EXT.P13 COPY OF THE G.O.(P) NO.61/2010/FIN. DATED 09/02/2010.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

P.V.ASHA, J.

W.P.(C) No.20385 of 2011

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Dated this the 30^th day of May, 2016

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JUDGMENT

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The petitioner is a Part Time Sweeper working under the 2^nd respondent Kerala State Housing Board (hereinafter referred to as the Housing Board for short) with effect from 1.9.2004. She is claiming regularisation on the basis of Exts.P2 and P13 orders issued by the Government regarding regularisation of Part Time Sweepers pointing out that her case was not considered for regularisation when certain other Part Time Sweepers were regularised as per Exts.P3 and P3(a) orders in the year 2006 and 12 Part Time Sweepers were regularised as per Ext.P7 order in 2011. The petitioner requested to consider her case also, claiming benefit of Ext.P2 Government order. Thereafter she had approached this Court by filing W.P.(C) No.8391 of 2011 which was disposed of by Ext.P11 judgment dated 23.3.2011 directing the respondents to consider and pass orders on her representation after giving her an opportunity of hearing. Thereafter, the Government passed orders as per Ext.P12 on 2.6.2011 rejecting her request saying that she did not complete

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W.P.(C) No.20385 of 2011

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five years of service as on 13.3.2008 and saying that her case will be considered when others similarly placed were considered by Housing Board for regularisation. This Writ Petition was filed at that stage.

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The Government have filed a counter affidavit stating that the persons regularised were having five years service and the petitioner could not be regularised, since she did not have the requisite service of five years. According to the Government, 18 casual Sweepers who were regularised were having more than five years service.

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The petitioner has produced Ext.P13 order along with reply affidavit claiming regularisation on the basis of Exts.P2 and P13.

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I heard the learned counsel appearing for the petitioner, the learned Government Pleader and the learned standing counsel and considered the contentions and pleadings.

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By Ext.P2 Government order-G.O.(P). No. 501/2005/Fin dated 25.11.2005, Government laid down revised guidelines with respect to regularisation of Part Time/Casual Sweepers, providing

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W.P.(C) No.20385 of 2011

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for the following: If Part Time/Casual Sweepers are working in Government offices, its sweeping area shall be determined in accordance with the guidelines in the appendix thereto, by getting the same measured by PWD officials after notice to the incumbent casual Sweepers, in their presence, before 15.12.2005; wherever, the sweeping area was found to have more than 100 sq.metres and there is casual Sweeper working but without a sanctioned post of Part Time Sweeper, the head of office shall immediately take up the matter with Government for creation of a post of part time contingent Sweeper and forward the proposal along with copies of the certificate of PWD Engineer and the details in the proforma given in the Annexure. The Administrative Department was thereupon to issue orders before 21.1.2006, creating the post or absorbing the existing casual Sweeper, in consultation with the Finance Department and giving remuneration of Rs.1,250/- (Rupees One thousand two hundred and fifty only) plus DA. The posts were to be created with effect from the date of appointment of the incumbent. Thus as per Ext.P2 order it was directed to take steps for regularisation of

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W.P.(C) No.20385 of 2011

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casual Sweepers who were in service as on 25.11.2005 with effect from the date of their appointment, in all cases where the sweeping area exceeded 100 sq. metres. Apart from that petitioner has produced Ext.P13 order issued by the GovernmentG.O.(P) 61/2010/Fin dated 9.2.2010 laying down further clarifications to the 2005 order and providing that all existing Sweepers would be entitled for regularisation based on the sweeping area as provided in Ext.P2 Government order in case their appointments were made before the date of Ext.P2 that is before 25.11.2005 and regularisation would take effect from the date of Ext.P13 order that is 9.2.2010.

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The Government orders Ext.P2 as well as Ext.P13 provides for regularisation of part time/casual labourers who were in service as on 25.11.2005. The Government or the Board does not have any case that these orders are not applicable in the case of the petitioner. Ext.P13 order was issued seeing that those working on daily wages and those working in offices with sweeping area of less than 100 sq. mtrs were not benefited by the 2005 order. Paragraph 3 (i) of Ext.P13 order reads as

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W.P.(C) No.20385 of 2011

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follows:

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3. In view of the above observations Government felt it highly necessary to incorporate certain modifications/clarification to the existing Government Order. Accordingly the following clarifications are issued.

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i) All existing Sweepers, other than Casual Sweepers, irrespective of the mode of appointment, shall also be entitled for regularization based on the sweeping area, defined in the Government order read as 3^rd paper above, provided their appointments were made on or before the issuance of GO read above and are continuing as such on the date of this order. The regularisation will have effect from the date of this order only.

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(ii) In temporary establishments of Government, which are created for a specific purpose and for a specific period, post of Part Time Sweeper shall not be allowed. However the person engaged for sweeping in such offices shall be entitled to payment at par with that of regular Part Time Sweepers/Casual Sweepers, with effect from the date of this order strictly based on the sweeping area of such offices, calculated in accordance with Appendix to the GO read as 3^rd paper above. In any case, the Sweepers engaged in temporary establishments shall not be entitled for regularization irrespective of their length of service, sweeping area etc. Hereinafter, all fresh appointments of Sweepers in temporary

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W.P.(C) No.20385 of 2011

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establishments shall be made only through nearest Kudumbasree unit

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iii)The Government are at liberty to conduct the reassessment of the sweeping area of any office, wherever necessary, by the Chief Technical Examiner, who is the competent Technical Authority of Finance Department. Such reassesment will be made strictly subject to the provisions contained in the appendix to the GO read as 3^rd paper above, with notice to the Sweeper and others concerned.

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iv)In cases, where Sweepers were engaged against existing sanctioned posts for any reason shall also be entitled to regularization, provided the date of appointment was on or before 25.11.05. On retirement of the existing Sweeper in such offices, the vacancy will be filled up through Employment Exchange only.

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As the petitioner comes within Ext.P2 as well as within clause (i) of paragraph 3 of Ext.P13 Government order, she is entitled to be considered for regularisation in accordance with those orders and the respondents are bound to consider her case for regularisation in terms of those orders, without insisting for five years service. The respondents have not produced any order in support of their contention that five years service is necessary for regularisation. At any rate on the face of Ext.P2, they cannot insist five years service for regularisation.

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W.P.(C) No.20385 of 2011

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Under the above circumstances, Ext.P12 order is quashed and there will be a direction to the respondents to take up the case of the petitioner again for regularisation in accordance with Exts.P2 and P13 and to pass orders on the same and to grant her all consequential benefits. This shall be done within a period of three months.

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The writ petition is allowed accordingly.

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Sd/- P.V.ASHA JUDGE

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rkc

B.S.Sheeja v. State of Kerala

Case brief

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B.S.Sheeja v. State of Kerala

Case brief

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