Remanded

Moly.P v. State of Kerala

Kerala HC9 Aug 2021OP(KAT)/306/2017

Case brief

AI extract

What is this about?

The High Court of Kerala set aside a Government order and Tribunal decision rejecting a casual sweeper's regularization claim. The Court held that the rejection was based on the department's illegality of employing two sweepers for one sanctioned post, amounting to taking undue advantage. The matter was remitted for fair consideration.

What did the court decide?

Impugned rejection order set aside; impugned Tribunal order set aside; plea for regularization remitted to the first respondent for fresh hearing and orders.

Moly.P Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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MONDAY, THE 9^TH DAY OF AUGUST 2021 / 18TH SRAVANA, 1943

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OP(KAT) NO. 306 OF 2017

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AGAINST THE ORDER/JUDGMENT IN OA 515/2015 OF KERALA

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ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM PETITIONER/S:

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MOLY.P AGED 46 YEARS W/O. PRAKASAN, AGED 46 YEARS, CASUAL SWEEPER,VETERINARY DISPENSERY, NOCHAD PANCHAYATH,KALPATHOOR, KOYILANDY TALUK, RESIDING AT MANAYILMEETHAL HOUSE, P.O, KALPATHOOR, VIA PERAMBRA,KOZHIKODE DISTRICT, KERALA. BY ADV SRI.P.K.RAMKUMAR

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF ANIMALHUSBANDRY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001

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2 THE DISTRICT ANIMAL HUSBANDRY OFFICER KOZHIKODE, KERALA PIN - 673 001.

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3 THE VETERINARY SURGEON VETERINARY DISPENSARY, MUYIPPOTH, MEPPAYYUR, KOZHIKODEDISTRICT, KERALA PIN - 673 524.

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4 N.K BABU S/O. CHATHAN, PART TIME SWEEPER, VETERINARY DISPENSARY,NOCHAD PANCHAYATH, KALPATHOOR, KOYILANDY TALUK, RESIDINGAT NARAYINIKAVU HOUSE P.O, CHERAPURAM, KOZHIKODE PIN- 673 507.

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5 M. PRAKASHKUMAR S/O. NARAYANAN NAIR, MANIKOTH HOUSE, P.O, KARAYAD,VIA MEPPAYYUR, KOZHIKODE DISTRICT PIN - 673 524.

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OTHER PRESENT:

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SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER

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OP(KAT)No.306/2017

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(KAT)No.306/2017

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ALEXANDER THOMAS & A. BADHARUDEEN, JJ.

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============================================= OP(KAT)No.306/2017

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(Arising out of the order dated 21.7.2017 in OA (EKM) No.515/2015)

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=============================================

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Dated this the 9^th day of August, 2021

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J U D G M E N T

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Alexander Thomas, J.

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The petitioner herein had approached the Kerala Administrative Tribunal by filing the instant Ext.P1 OA (EKM)No.515/2015 and the main the pleas therein was to the effect that the applicant is a Casual Sweeper in an office establishment where there is already a regular sanctioned post of Part-time Sweeper, he is legally entitled to be regularized in service in terms of Ext.P7 G.O(P)No.501/2005/Fin. dated 25.11.2005 and subsequent Government orders as in G.O(P) No.61/2010/Fin. dated 9.2.2010 and other consequential prayers. The plea for regularization has been rejected by the Tribunal as per the impugned Ext.P6 final order dated 21.7.2017 in OA (EKM)No.515/2015 on the ground that the petitioner’s case will not come within the norms envisaged as per the above said Ext.P7 G.O(P)No.501/2005 Fin. Dated 25.11.2005 and subsequent G.O (P) dated 9.2.2010 and that at the relevant time for the period from August 2005 up to June 2008, both the original applicant and another Casual Sweeper one M.Prakash Kumar, who

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OP(KAT)No.306/2017

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was working as Casual Sweeper in the above said office establishment after the retirement of the regular part-time sweeper etc. Aggrieved by the impugned Ext.P6 final order of the Tribunal dismissing the above OA, the original applicant has preferred the instant OA under Articles 226 and 227 of the Constitution of India.

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2. Heard Sri.P.K.Ramkumar, learned Counsel appearing for the petitioner in the OP/original applicant in the OA and Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for official respondents 1 to 4 in the OP/R1 to R4 in the OA.

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3. Since the contesting respondent No.5 herein has not appeared before the Tribunal at the OA stage, and as it is stated by the Tribunal in Paragraph No.5 of Ext.P6 final order that contesting Respondent No.5 herein has already secured another regular appointment in Government service, notice to said party will stand dispensed with.

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4. It is common ground that, all through out there was a sanctioned post of Part-time Sweeper at the Veterinary Dispensary of Nochad, Kozhikode, which is the office establishment concerned in this case, and that there was no need to take any further action to create the post of Part-time Sweeper (see Paragraph No.5 of Ext.P5

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counter affidavit filed by the respondents in W.P. (C)No.19561/2008, which was later transferred to the Tribunal as TA No.6097/2012). It is also common ground that earlier one Sri.Narayanan Nair, was appointed as regular part-time Sweeper in the said office establishment and he had retired from service on 31.7.2005 (see paragraph No.3 of Ext.P4 reply statement dated 19. 7.201 7 filed by R3 in OA (EKM) No.515/2015). After the retirement of the regular incumbent, instead of either appointing another regular incumbent through the employment exchange or appointing a sole Casual Sweeper, the respondent authorities concerned thought it fit to engage both the original applicant herein as well as Prakash Kumar (the contesting respondent NO.5 herein). It appears from the pleadings on record that the original applicant had commenced service as Casual Sweeper in August 2005 and has been continuously in service till about October 2010. The details of the period of service of the original applicant and Sri.Prakash Kumar from August 2005 up to June 2008 are given in tabular column given on pages 2 and 3 of Ext.P5 counter affidavit.

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5. It is thereafter that the Government has issued Ext.P7 G.O(P)No.501/2005/Fin. Dated 25.11.2005 ordering that those casual sweepers, who were in service as on 25.11.2005, and where

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the sweeping area of the office establishment concerned is allotted to the said casual sweeper is 100 Sq.mtr or more, then such a casual sweeper is to be regularized in service on the basis of the said G.O. after verifying the minimum requirement of the sweeping area either as against the existing regular sanctioned post of part-time sweeper or there is no such regular post, a post should be created for that purpose. Where the Casual Sweeper is in service as on 25.11.2005, but the sweeping area was below 100 Sq.mtr.. then the employee is entitled for getting a special pay and is to be continued, and is not replaced by other casual sweepers or through employment exchange hands. Later the Government has issued G.O(P) No.61/2010/Fin. Dated 9.2.2010, wherein it was ordered that in a case where the Casual Sweeper has been in service as on the date of issuance of G.O.(P) dated 25.11.2005 and the sweeping area was less than 100 Sq.mtr. as on 25.11.2005 and the sweeping area thereafter gets increased to 100 Sq.mtr. before the issuance of the said G.O. dated 9.2.2010, then, such a Casual Sweeper could be regularized in service w.e.f. 9.2.2010. This Court and the Tribunal has also rendered various verdicts in these matters, wherein it has also ordered that even in a case where the Casual Sweeper was in service as on 25.11.2005 and the Sweeping area has not exceeded

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OP(KAT)No.306/2017

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100 Sq.mtr. or more. either as on 25.11.2005 or as on 9.2.2010, but the sweeping area is subsequently increased to 100 Sq.mtr., then such Casual Sweeper could be regularized in service from the actual date on which the sweeping area has increased to 100 Sq.mtr. or above.

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6. It appears that both the original applicant and contesting respondent No.5 were working as Casual Sweepers up to September 2009. From the pleadings it also appears that Contesting respondent No.5 herein had also sought regularization in service on the basis of the aforesaid GOs and the said plea for regularization for service has been rejected by the Government on the ground that at the relevant period two Casual sweepers were working and therefore, the plea for regularization cannot be granted in the case of said incumbent. Later it appears that Contesting respondent No.5 had secured a regular job in the Government service and he had left the work as Casual Sweeper in the present office establishment concerned.

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7 . The learned Government Pleader would point out that original applicant was thereafter allowed to continue on daily wages for the period from October 2009 to July 2010. Thereafter it appears that one Sri.N.K.Babu, a regular Part-time Sweeper, who

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was working in another office was transferred to the present office establishment and he continued to work as regular part-time sweeper in the present office establishment concerned for the period from 7.7.2010 up to September 2016. Hence it appears that the service of the original applicant as Casual Sweeper stood terminated w.e.f. 6.7.2010 evening. Later consequent to the interim orders passed by the Tribunal, the above said regi;ar parttime Sweeper, Sri.N.K.Babu was transferred from the present establishment and the original applicant was inducted as Casual Sweeper in that office from October 2016 onwards and she is continuing in service in that capacity.

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8 . When the original applicant was terminated from service from July 2010, she had approached this Court by filing W.P. (C)No.19561/2008. The said writ petition was transferred to the Kerala Administrative Tribunal, which resulted in Ext.P1 final order dated 5.11.2014 rendered by the Tribunal in TA No.6097/2012, wherein it was ordered that the Government was directed to take a considered decision on the claim of the original applicant for regularization in service as part-time sweeper on the basis of the Government Orders and other norms within a period of two months. Later in compliance with the directions issued by the

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9 Tribunal at Annexure A2, the competent authority, the State Government has issued Annexure A1 rejection order as per G.O. (Rt)No.364/2015 dated 26.2.2015 rejecting the plea of the petitioner for regularization in service as Part-time Sweeper. The main ground of rejection in Annexure A1 is to the effect that since two Casual Sweepers were working at the relevant period in the same office, there is no question of getting the benefit of regularization in terms of Ext.P7 G.O.(P) dated 25.11.2005. Being aggrieved by Annexure A1 G.O. dated 26.2.2015, the original applicant has again approached the Tribunal by filing the Ext.P1 OA, which has now resulted in the adverse verdict at Ext.P6. There is no dispute that regular post of part-time sweeper was already sanctioned in office establishment even long prior to the issuance of Ext.P7 G.O. dated 25.11.2005. As a matter of fact, regular incumbent was appointed through the regular method of appointment as part-time sweeper in the said office viz. Sri.one Narayanan Nair, who had retired from service on 31.7.2005.

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9. As a matter of fact, it is clearly admitted by the respondent that after the retirement of regular part-time Sweeper Sri.Narayanan Nair on 31.5.2005, both the original applicant and contesting respondent No.5 were appointed as Casual Sweepers in

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10 the above office from August 2005. It is even clearly admitted in the pleadings that since regular post of part-time sweeper was already sanctioned, there is no necessity to create a separate post. The regular incumbent Sri.Narayanan Nair had retired from service on 31.7.2005 at the time when Ext.P7 G.O.(P) dated 25.11.2005 was not issued. Therefore, the Department was obliged to either appoint a regular part-time sweeper through the regular method of employment exchange process or should have appointed a sole Casual Sweeper in the office. Instead of that the Department has chosen a curious procedure of appointing two casual Sweepers, when the norms for sweeping area permitted appointment of only one Casual Sweeper or regular Sweeper as the case may be. The plea for regularization made by both contesting respondent No.5 as well as by the original applicant has been rejected by the Government on the ground that norms in Ext.P7 G.O and subsequent Government Orders are not satisfied in this situation, in as much as during the relevant period two casual sweepers were working.

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10. That apart it can be even seen from the mere reading of the Paragraph 10 of the G.O.(P) dated 25.11.2005 that in a case where then existing Casual Sweepers were terminated from service

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in accordance with Government Order dated 19.7.2005, (referred to as 7 th paper in Ext.P7) and new persons have been selected through Employment exchange, then there would be 2 claimants for the same posts. That could be decided on a case to case basis, if necessary accommodating such persons in other offices and such cases will also be reported to Government and absorption done only under the orders of the Government. Therefore, even Ext.P7 G.O. envisages consideration of the plea more than one claimants for regularization and it is not as if the Government is denuded of discretion to consider the matter in a just and fair manner.

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11 . After hearing both sides, it is to be noted that the plea for regularization is to be granted, where the Casual Sweeper is doing all the works which are to be done by the regular part-time Sweeper. In the instant case, the regular part-sweeper has to take care of the entire sweeping area of the office, which is stated to be about 131 Sq.mtr. Since that be position, it is true that only one Casual Sweeper should have been appointed. But the illegality has been committed not by the original applicant or by the contesting respondent No.5 in the appointment of the casual sweeper, and the said illegality has been committed by the respondent authorities concerned. Therefore, it appears that if only one Casual Sweeper

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was appointed, certainly his case could have been taken for consideration in terms of Ext.P7 G.O(P) dated 25.11.2005 or at least in terms of the subsequent G.O.(P) dated 9.2.2010 as the case may be. Therefore, we are of the view that the respondents authorities cannot justify the rejection order on the grounds cited therein for that would amount to taking advantage of wrong committed by them. In the instant case, the Contesting respondent No.5 has also sought for regularization and his plea was rejected. Thereafter, it appears that he secured another regular job and he has quit the service as Casual Sweeper. So, as of now, there is only one Casual Sweeper, who has staked the claim for regularization. The original applicant was terminated from service on 6.7.2010,when another regular incumbent was transferred to the office. Later the said regular Casual Sweeper was transferred from the said office and the original applicant was inducted as Casual Sweeper w.e.f. October 2016.

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12. After hearing both sides, prima facie we are of the view that, the Government should have seriously considered the regularization of the original applicant at least after the contesting respondent No.5 had been revealed from service in 2010 or so, or at least from October 2016, when the applicant was reinducted

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13 back in service. We are not pronouncing any final opinion on the matter, and the abovesaid observations and findings made by us are prima facie in nature. However, we are of the firm view that, the Government has to exercise its discretion so that a fair and just treatment is given to the petitioner. If only one Casual Sweeper had been engaged, all throughout then there is no question for rejecting the plea for regularization. The plea for regularization has been rejected only on account of the legal wrong committed by the respondent authorities concerned. These crucial aspects have not been taken note of by the Tribunal in the impugned verdict. Accordingly, it is ordered that the impugned rejection order of the Government at Annexure A1 G.O.(Rt)No.364/2015 dated 26.2.2015 will stand set aside. It is also ordered that the impugned final order at Ext.P6 in OA (EKM) No.515/15 is also set aside. Accordingly, the plea of the petitioner for regularization in service will stand remitted to competent authority, the first respondent, the Department of Animal Husbandry, who should afford a reasonable opportunity of being heard to the petitioner and then pass orders afresh taking into consideration the above said findings and observations made by us herein above. Orders in this regard shall be duly passed by the 2 nd respondent within three

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months from the date of production of the certified copy of the

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judgment.

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With these observations and directions, the above OP will

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stand finally disposed of.

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sd/

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ALEXANDER THOMAS, JUDGE

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sd/

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A. BADHARUDEEN, JUDGE

jm/

OP(KAT)No.306/2017

APPENDIX OF OP(KAT) 306/2017

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PETITIONER ANNEXURE
ANNEXURE A1	TRUE COPY OF THE GOVT. ORDER GO(RT) NO.364/2015 DATED 26/02/2015 PASSED BY THE 1ST RESPONDENT.
ANNEXURE A2	CERTIFIED COPY OF THE HONOURABLE TRIBUNAL ORDER IN TA 6097/12 DATED 05/11/14.
ANNEXURE A3	TRUE COPY OF THE CONSENT LETTER FILED BY SRI. PRAKASHKUMAR.
EXHIBIT P1	TRUE COPY OF THE OA EKM NO.515/15 AND ANNEXURE'S THEREIN.
EXHIBIT P2	TRUE COPY OF KERALA ADMINISTRATIVE TRIBUNAL'S ORDER IN TA6097/2012 DATED 05-11-2014.
EXHIBIT P3	TRUE COPY OF THE REPLY STATEMENT FILED BY 1ST RESPONDENT IN O.A NO.515/15.
EXHIBIT P4	TRUE COPY OF THE REPLY STATEMENT FILED BY 3RD RESPONDENT IN O.A NO.515/15.
EXHIBIT P5	TRUE COPY OF THE COUNTER AFFIDAVIT FILED FOR 3RD RESPONDENT IN WP(C) 19561/2008.
EXHIBIT P6	TRUE COPY OF THE KERALA ADMINISTRATIVE TRIBUNAL'S ORDER DT. 21.7.17 IN OA (EKM) 515/2015.
EXHIBIT P7	TRUE COPY OF THE GOVT.ORDER G.O(P)
	501/2005/FIN.DATED 25-11-2005.

Moly.P v. State of Kerala

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Moly.P v. State of Kerala

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