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2006 DIGILAW 448 (KER)

C. Pankajam v. State of Kerala Represented by the Secretary to the Government

2006-07-21

K.K.DENESAN

body2006
Judgment :- The petitioners are casual Part-time Sweepers working in the Department of Agriculture and some other departments under the Government of Kerala. In the absence of specific orders issued by the Government, the Part-time Casual Sweepers were appointed on daily wages and for limited periods and were subjected to the vagaries of indiscriminate decisions taken by the heads of offices and controlling authorities. 2. This Court in Mercy v. State of Kerala (2004 (2) KLT 848) took cognizance of the sad plight of such employees and directed that those employees should be allowed to continue in service provided they were appointed or engaged prior to a specified date. Government felt aggrieved by the judgment of the learned Single Judge and filed writ appeals. During the pendency of the appeals, Government issued Govt. Order dated 2-8-2005 with the object of lessening the hardships of the Part-time Casual Sweepers. A Division Bench of this Court disposed of the appeals, taking note of the Order issued on 2-8-2005 and issuing appropriate directions. Thus the claim of Part-time Casual Sweepers for regularisation in service had to be dealt with in accordance with the procedure laid down in Govt. Order dated 2-8-2005 and judgment in W.A.No.1863 of 2004 and connected cases. 3. Thereafter, the Government felt that there were areas not covered either by the Govt. Order dated 2-8-2005 or by the judgment of the Division Bench and therefore a comprehensive order was necessary to govern the rights of Part-time Sweepers. The result was issuance of yet another order, viz. G.O. (P)No.501/2005/Fin, Dated 25-11-2005. 4. The petitioners herein come within the purview of the above Govt. Order dated 25-11-2005. Notwithstanding the beneficial provisions in the above Govt. Order, they feel aggrieved by the guidelines contained in the appendix attached to the said Order. It is contended that the Govt. Order illegally and arbitrarily restricts their right to claim pay and allowances. Clause 1(iv) of the guidelines contained in the appendix attached to Govt. Order dated 25-11-2005 is under challenge. Clause 1(iv) reads as follows: “(iv) If there is a courtyard attached to the office, then the area of the courtyard actually swept, subject to the condition that this shall not exceed one third of the aggregate of (i), (ii) above.” The guidelines define what is a sweeping area as far as a Part-time Sweeper is concerned. Sweeping area means carpet area, ie. Sweeping area means carpet area, ie. The usable floor area, area of car porch, staircases, verandah or corridor, provided such car porch, staircase, verandah or corridor is under the exclusive use of the office in question, and provided further that those areas are use regularly by the office staff or the general public and if it is to be swept regularly. Toilets used exclusively by the office in question or the general public visiting such an office if it is to be washed and cleaned regularly are also brought within the expression ‘sweeping area’. Carpet area, however, will not include area of terrace, car porch, stair cases, lift wells, escalators, ducts, toilets, air conditions, plant room and electrical control room, if those areas are not regularly used. As far as this part of the guidelines incorporated in clause (1), the petitioners have no grievance. But their compliant is against clause (1) (iv). 5. Counsel for the petitioners contends that the above sub-clause, in effect, amounts to exploitation of labour, particularly, those belonging to the lowest strata of the service. Counsel would submit that in a case where the entire courtyard has to be swept as might be required having regard to the fact situation and circumstances, it is not open to the Part-time Casual Sweepers to refuse to perform such work as and when directed by the heads of offices or the controlling authorities. That being the practical side of the picture, the Government cannot deny pay and allowances to those Part-time Sweepers who would be compelled, as of necessity or as per the directions of the higher authorities, to perform that work. 6. I am unable to agree with the above contention of the counsel for the petitioners. To my mind, clause 1(v) of the appendix does not contemplate a situation as apprehended by the petitioners. Government have taken into consideration the fact that certain offices may have large extent of area as courtyard or office compound and sweeping the entire area may not be necessary. It has therefore been decided that the area to be included for the purpose of sweeping as courtyard, shall have a reasonable proportion to the carpet area. If uniform standards are prescribed, that will avoid arbitrary decisions being taken by the subordinate officers according to their whims and fancies. It has therefore been decided that the area to be included for the purpose of sweeping as courtyard, shall have a reasonable proportion to the carpet area. If uniform standards are prescribed, that will avoid arbitrary decisions being taken by the subordinate officers according to their whims and fancies. For example, if the carpet area is 200 sq.m., there is no point in sweeping the entire compound extending to one acre or more and then determining the pay and allowances of the Part-time Sweeper based on the entire area. Laying down a principle which is uniformly applicable to all Part-time Sweepers is unexceptional. Government is competent to determine that the area of the courtyard to be swept must be reasonably proportionate to the carpet area of the office concerned. I do not find anything in the language used in clause 1 (iv) which would suggest that the entire courtyard should be swept by the Part-time Sweeper, but he/she shall limit his/her pay and allowances to the rate fixed for one third of the courtyard actually swept. What is meant by the above clause which is under attack is that the Part-time Sweeper is expected to sweep only third of the courtyard and that one third area will be determined in proportion to the carpet area mentioned as the sweeping area vide sub-clauses (i), (ii) and (ii) of clause (1). Challenge against clauses 1(iv) of the appendix attached to Govt. Order dated 25-11-2005, therefore, fails. However, it is open to the aggrieved employees to approach the Government requesting to introduce any modification in the above clause because the Government have got ample powers to make such modifications to avoid loss of emoluments or to grant higher emoluments. 7. As far as the claim of the petitioners for pay and allowances at the rates they were getting prior to the issuance of Govt. Order dated 25-11-2005 is concerned, it can be seen that adequate safeguards have been provided in paragraph 11 of the Govt. Order which reads as follows: “The guidelines at Appendix shall also be applied to offices which already have part-time contingent sweepers. If, consequent to the re-fixation of the area in such offices in accordance with the guidelines, the sweeping area increases from below 400 mtrs. to above 400 mtrs. Order which reads as follows: “The guidelines at Appendix shall also be applied to offices which already have part-time contingent sweepers. If, consequent to the re-fixation of the area in such offices in accordance with the guidelines, the sweeping area increases from below 400 mtrs. to above 400 mtrs. the part-time sweeper concerned shall be entitled to the higher remuneration of Rs.1500 plus DA, but with effect from the date of the Government Order only. If the area reduces from above 400 mtrs. to below 400 mtrs. the remuneration of the particular part-time sweeper shall not be reduced from Rs.1500 plus DA. The existing incumbent shall continue to get what he was getting. But the employee posted against the next vacancy should be given wages as per the rules. If, no fixation, the sweeping area reduces from above 100 sq.mtrs. to below 100 sq. mtrs. the remuneration of the existing part-time sweeper, if he is getting Rs.1250 p.m. plus D.A., shall not be reduced. He shall continue to get what he was getting. Here also, the next vacancy in the post should be filed up by a casual sweeper only, by paying Rs.600 per month.” Ext.P4 being a Govt. Order, all heads of offices and controlling authorities are bound to follow, strictly, the directions contained therein. In case, the petitioners feel aggrieved by any inaction on the part of the concerned heads of offices and controlling authorities or by any violation or non-compliance of the directions contained in paragraph 11, it is open to them to bring their grievances to the notice of the Government for appropriate remedial action. I need only say that Part-time Sweepers who were in service and have been getting pay and allowances at the rates mentioned in paragraph 11 on the appointed day shall continue to get it on the strength of the directions contained in that paragraph. This will be so, even if there takes place a reduction of the area under the norms newly introduced. 8. Interim orders passed by this Court will continue in force till the heads of offices or the controlling authorities as the case may be, decide otherwise based on Government Order dated 25-11-2005. 9. The claim of the petitioners in W.P.(C)Nos.18137 and 15069/06 for payment of pay and allowances in terms of the area for sweeping will depend upon the date of their appointment. 9. The claim of the petitioners in W.P.(C)Nos.18137 and 15069/06 for payment of pay and allowances in terms of the area for sweeping will depend upon the date of their appointment. This aspect will be considered by the Government after calling for the remarks of the heads of offices through the controlling authorities. Appropriate decision shall be taken within two months on production of a copy of this judgment. With the above observations there writ petitions are disposed of.