T.T. Devayani vs Kerala Motor Workers Welfare Fund Board and The District Executive Officer

S. Siri Jagan, J.—The petitioner is working as a part-time sweeper in the office of the 2nd respondent continuously from October 1999 onwards. Originally, the petitioner was paid monthly salary of Rs. 110/- which was enhanced to Rs. 600/- per month. Petitioner was also being paid bonus every year at the rate of Rs. 500/-. Petitioner filed a representation for permission to continue as part time sweeper and for regularisation of the service of petitioner. On receipt of Ext.P2, the first respondent terminated the service of the petitioner. It is under the above circumstance petitioner has filed this writ petition seeking the following reliefs:

I. issue a writ in the nature of mandamus commanding the respondents not to discharge the service of the petitioner as part time sweeper in the 2nd respondent''s office and not replace her with a temporary hand.

I(a). declare that in view of Ext.P3, the petitioner is entitled to be regularized in the post of part time contingent employee, created in the office of the 2nd respondent, on the basis of the actual sweeping area available in the 2nd respondent''s office.

II. issue a writ in the nature of mandamus commanding the respondents not to terminate the service of the petitioner without following the statutory proceedings.

III. issue a writ in the nature of mandamus commanding the 1st respondent to consider and pass orders on Ext.P2 within such time as may be fixed by this Hon''ble Court.

IV. Issue such other orders, writs or directions as are deemed fit by this Hon''ble Court;

V. Award cost of this proceeding to the petitioner.

A counter affidavit has been filed wherein the contention taken by the first respondent is that by Ext.R1(a) the District Employment Officer, Thrissur, informed the first respondent that the engagement of the petitioner is in violation of the Employment Exchange Compulsory Notification Act 1959 and, therefore, the service of the petitioner has to be terminated and the vacancy notified to the Employment Exchange. The first respondent therefore seeks to justify the action taken by the first respondent in terminating the service of the petitioner.

Petitioner would contend that petitioner was also originally engaged by undergoing a selection process, since no candidate were available with the Employment Exchange, which was certified by Local Employment Exchange. She further contends that in view of Ext.P3 Government Order, she is entitled to be continued to be engaged and also for regularisation in service.

I have considered the rival contentions in detail. By virtue of the interim order passed in this case the petitioner is continuing in service. In Ext.P3 Government Order passed in respect of engagement and regularisation of casual sweepers it is directed thus in paragraph 8:

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. If on fixation, the area is seen to exceed 100 sq. mtrs. and if there is no post of part-time sweeper sanctioned for the office in question, but there is a casual sweeper being engaged the Head of the Office shall immediately take up with the Government for creation of a post of part-time contingent sweeper. Copies of the certificate of the PWD Engineer and full details of the case in the pro forma in the Annexe shall be furnished along with the proposal. The Administrative Department in Government shall then issue orders (within a period of 4 months from the date of this order), 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 Rs. 1,250/- plus D.A. p.m (for area of 100 sq. mtrs. and above but below 400 sq. mtrs.) and Rs. 1500 plus D.A. p.m.(for area of 400 sq. mtrs. and above but below 800 sq. mtrs.). The posts shall be created only with prospective effect and all absorption/regularisation also shall be done with prospective effect only. No back arrears shall be payable. The period spent prior to regularisation being casual service shall not count for any purpose.

I am satisfied that petitioner is entitled to the benefit of the said Government Order. In the above circumstances, this writ petition is disposed of directing the first respondent to take steps in accordance with the above said Government Order in the matter of engagement and regularisation of the petitioner as a sweeper. Needless to say, in view of my above findings, the petitioner has to be continued to be engaged as part-time sweeper till final orders are passed in accordance with Ext.P3 Government Order which shall be done as expeditiously as possible, at any rate within 2 months from the date of receipt of a copy of this judgment.