Single Judge appeal against the Kerala Administrative Tribunal's order awarding enhanced pay to a casual sweeper. The High Court dismissed the appeal, upholding the Tribunal's decision based on Government orders protecting incumbents' pay.
Further time of 6 weeks granted to petitioners to comply with Tribunal's order. Dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
OP(KAT)No.246/2019
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942
OP(KAT).No.246 OF 2019
AGAINST THE ORDER IN TA 7538/2012 DATED 27-11-2018 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS IN TA:
1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001
3 THE TAHSILDAR, CHERTHALA, PIN 688 524
BY SR.GOVERNMENT PLEADER SRI B. VINOD
RESPONDENT/APPLICANT IN TA:
M.RAJU, S/O. MANIYAPPAN, RESIDING AT KUNNUNKAL HOUSE, S.L PURAM P.O, ALAPPUZHA, PIN 688 523 CASUAL SWEEPER, VILLAGE OFFICE, MARARIKULAM NORTH, CHERTHALA TALUK, ALAPPUZHA DISTRICT PIN 688 524
BY ADV. SRI.KALEESWARAM RAJ BY ADV. SRI.VARUN C.VIJAY BY ADV. KUM.A.ARUNA BY ADV. KUM.THULASI K. RAJ BY ADV. SMT.RIYA RAYMOL IYPE
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 15.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT)No.246/2019
2
ALEXANDER THOMAS & T.R. RAVI, JJ.
O.P.(KAT) No.246 of 2019
[ Arising out of order dated 27.11.2018 in T.A.No. 7538 of 2012 of KAT,Tvm. ]
--------------------------------------------------
Dated this the 15th day of February, 2021
JUDGMENT
T.R. RAVI, J.
The original petition has been filed by the State of Kerala and its officers/authorities, challenging the order dated 27.11.2018 in T.A.No.7538 of 2012, on the file of the Kerala Administrative Tribunal, Thiruvananthapuram (hereinafter referred to as the Tribunal). The petitioners were the respondents before the Tribunal and the respondent was the applicant.
OP(KAT)No.246/2019
3
area or the area to be cleaned by such part time contingent employees/sweepers. The rates were specified therein for two different types of cases depending on whether the sweeping area was less than 200 M2 or more than 200 M2 . Subsequently, by a pay revision order G.O.(P) No.3000/98/Fin. dated 25.11.1998 which came into effect on 01.03.1997, certain modifications were ordered. The categorisation was also different as per the pay revision order. Accordingly, Part Time Sweepers who were sweeping an area above 100 M2 but below 400 M2 were to be paid at the revised rate of Rs.1,250/- per month plus DA and persons who were sweeping an area above 400M2 , but below 800 M2 were to be paid at the rate of Rs.1,500/- per month plus DA. Enhanced pay was available to persons who were put in service as part time employees for 10 years, 20 years and 25 years. With respect to casual sweepers who were sweeping an area of less than 100 M2 , the Government issued G.O.(P) No.3002/98/Fin. dated 25.11.1998 ordering that such persons will be paid at the rate of Rs.600/- per month with effect from 1.11.1998.
OP(KAT)No.246/2019
4
are casual sweepers, several persons approached this Court by way of writ petitions. In the meanwhile, the Government issued G.O.(P) No.390/03/Fin. dated 17.07.2003, which said that Part Time Sweepers should be engaged only for a period of two months and should be changed every two months. The above order was however withdrawn as per G.O.(P) No.500/2003/Fin. dated 25.9.2003. The Government thereafter issued letter No.28555/T1/03/RD dated 6.10.2003 clarifying that the sweeping area is the area excluding staircase, veranda, courtyard, etc. The order also said that if casual sweepers are appointed for two months and sweeping is more than 100 M2 they can be paid at par with part time sweepers and in cases where the area is below 100M2 such persons are to be paid at the rate of Rs.600/- per month as a consolidated pay. There was also a direction to make appointments through Employment Exchange for the sanctioned post.
OP(KAT)No.246/2019
5
clarifications regarding the manner of calculation of sweeping area. It was directed that the sweeping area with regard to persons who were engaged prior to 6.10.2003, is to be calculated as the carpet area, veranda, corridor, staircase and the courtyard, usually swept. It was also held that in any case the area shall not exceed 1½ times the plinth area. It was further held that since the State had enjoyed the fruits of the labour of such persons, they shall not be terminated from service for the only reason that they have not been appointed through the Employment Exchange. The Court further directed that all the Part Time Sweepers who have approached the Court as well as those who have not approached the Court shall be paid wages including arrears on the basis of the pay revision order with effect from 01.03.1997.
OP(KAT)No.246/2019
6
dated 12.08.2005 in State of Kerala & Ors. v. M.M.Mercy & Ors. (W.A.No.1863 of 2004 and connected cases) . After referring to the scheme proposed in G.O.(P) No.361/2005/Fin. dated 02.08.2005, the Division Bench noted that in the light of the Scheme framed, the issue remains in a narrow compass regarding the directions contained in paragraph 15 of the judgment of the learned Single Judge in the judgment in Mercy v. State of Kerala [2004 (2) KLT 848], relating to the payment of arrears. The Division Bench in paragraph 18 held that the sweeping area is a matter to be found on actual measurement at the instance of the respective officers under the supervision of the head of the district of the concerned Department with the aid of an Engineer from the Public Works Department, taking into account of the requirement of the offices concerned. It was further held that in cases where sweeping area is disputed, the same shall be fixed by causing actual measurement with notice to the incumbents concerned in their presence. On the basis of the judgment of the Division Bench, the Government modified the order dated 02.08.2005 and carved out a fresh a order GO(P) No.501/2005/Fin. dated 25.11.2005 to govern the cases of regularisation of existing eligible casual sweepers and
OP(KAT)No.246/2019
7
regarding appointments to future vacancies. Paragraph 8 of the above Government order deals with regularisation of the existing casual sweepers. As per the Government order, the sweeping area has to be calculated in accordance with the guidelines given in the appendix, the measurement being carried out by the PWD officials after notice to the incumbent casual sweeper and in his presence. Wherever the sweeping area exceeds 100 M2 and if there is no post of Part Time Sweeper sanctioned for the office in question, but there is a casual sweeper being engaged, steps are to be taken for creation of a post of part time contingent sweeper. The posts are to be created with effect from the date of appointment of the incumbent as casual sweeper or from 18.6.2001 (i.e., three years preceding the date of the judgment of the learned Single Judge in Mercy v. State of Kerala [2004 (2) KLT 848]), whichever is later. Paragraph 11 of the Government order deals with cases where the sweeping area on re-measurement, increases from below 400 M2 to above 400 M2 , requiring the payment of higher remuneration. The order provided for a fresh certification of the sweeping area of the existing premises within one year from the date of the order. It also said that if the sweeping area on refixation reduces to
OP(KAT)No.246/2019
8
below 100 M2 , the existing incumbent shall continue to get Rs.1250/plus DA which he was getting and that vacancy in the said post shall be filled up only by a casual sweeper, by paying Rs.600 per month.
OP(KAT)No.246/2019
9
same was not paid. The respondent thereupon filed W.P.(C)No. 534 of 2011 before this Court claiming salary at the rates shown in Ext.P2 together with arrears and to continue to pay the same subject to further pay revisions. A counter affidavit was filed on behalf of the petitioners contending that the salary was reduced on the basis of a clarification issued by the Government on 6.10.2003. After the formation of the Tribunal, the writ petition was transferred to the Tribunal and was renumbered as T.A.No.7538 of 2012.
OP(KAT)No.246/2019
10
paragraph 11 of the Government order dated 25.11.2005, is very much in tune with the several binding judgments of this Court. The order also provides that the sweeping area should be refixed only with notice to the incumbent and in his/her presence. There is absolutely no pleading on behalf of the petitioners that there has been such a refixation. Even if there had been such a refixation and the area had reduced to below 100 M2 , having regard to the protection of pay granted to incumbents, and particularly persons who already have a judgment of this Court in their favour, the petitioners could not have reduced the pay. Moreover, the order dated 6.10.2003 had already been considered by this Court in its judgment in Mercy (supra) [2004 (2) KLT 848], where in it was held that persons like the respondent were entitled to be paid the wages as revised in 1997.
OP(KAT)No.246/2019
11
above circumstances, we deem it fit to grant the petitioners a further time of 6 weeks from the date of receipt of a certified copy of this judgment, to comply with the directions issued by the Tribunal in its order dated 27.11.2018 in T.A.No.7538 of 2012.
With the above modification of the order of the Tribunal, the original petition is dismissed. The parties will suffer their respective costs.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/- T.R. RAVI, JUDGE
dsn
OP(KAT)No.246/2019
12
APPENDIX
PETITIONER'S EXHIBITS:
| EXT.P1: | TRUE COPY OF TA No.7583/12 ALONG WITH ANEXURE BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL. |
|---|---|
| EXT.P1(A1): | TRUE COPY OF JUDGMENT DT.30.5.2003 IN OP No.8248/2003. |
| EXT.P1(A2): | TRUE COPY OF ORDER DT.12.9.03. |
| EXT.P1(A3): | TRUE COPY OF REPRESENTATION DT.21.7.2010 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. |
| EXT.P2: | TRUE COPY OF COUNTER AFFIDAVIT FILED ON BEHALF OF THE SECOND PETITIONER IN THIS COURT IN THE AFORESAID TRANSFERRED APPLICATION DT.5.9.2012. |
| EXT.P3: | COPY OF ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DT.27.11.2018. |
2 issues framed by the court
Whether the High Court should interfere with the Tribunal's order granting enhanced pay to a casual sweeper despite a subsequent reduction in sweeping area.
Whether the State can reduce the pay of an incumbent sweeper who was already receiving enhanced pay under a prior Government order.
Colour shows how this judgement treated each authority
Mercy v. State of KeralaExplained¶5
Mercy v. State of Kerala [2004 (2) KLT 848]
State of Kerala & Ors. v. M.M.Mercy & Ors.Explained¶5
State of Kerala & Ors. v. M.M.Mercy & Ors. (W.A.No.1863 of 2004)
STATE OF KERALA
M.RAJU
ALEXANDER THOMAS
T.R. RAVI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
