IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35839 of 2004(N)
1. M.VIJAYAKUMAR,
... Petitioner
Vs
1. DIRECTOR, ANIMAL HUSBANDRY DEPARTMENT,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.M.RAJAGOPALAN NAIR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice A.K.BASHEER
Dated :08/09/2010
O R D E R
A.K. Basheer, J.
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W.P (C)No. 35839 of 2004
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Dated this the 8th day of September, 2010
Judgment
Is the petitioner entitled to be appointed as part
time contingent worker in Animal Husbandry Department
on the strength of the erstwhile service rendered by him as
voluntary Vaccinator?
2. The above question was answered by respondent
No.1, the Director, Animal Husbandry Department under
the Government of Kerala, in the negative. Hence this writ
petition.
3. Relevant facts may be briefly noticed.
4. Admittedly petitioner had worked as Voluntary
Vaccinator under the Livestock Disease Control Scheme
sponsored by Government of India. According to the
petitioner he had worked as Voluntary Vaccinator from
March 26, 1986 after undergoing the prescribed training.
The above Scheme was terminated by the Government on
March 31, 1987.
5. Under normal circumstances, petitioner would
not have derived any benefit out of the above contractual
engagement but for the amendment to Rule 3 of the Special
Rules for the Kerala Part time Contingent Service
WPC.35839/2004 : 2 :
(Amendment) Special Rules , 1997 (for short, the Rules).
But by virtue of the amendment to the Rules referred to
above, petitioner became entitled to seek entry in part time
contingent post in the Animal Husbandry Department.
Unamended Rule 3 stipulated that the method of
appointment to the various categories shall be by
recruitment through Employment Exchange.
6. But by the amendment brought into Rule 3 in
G.O (P).No.32/97/P & ARD dated December 5, 1997 the
following proviso was added :
“Provided also that this rule shall not
apply in the case of appointment of
persons who were engaged as
Voluntary Vaccinators for a period of
one year or more under the
“Livestock Disease Control Scheme”
to the posts in the Animal Husbandry
Department.”
7. By yet another amendment to sub-rule (a) of Rule
5, after the third proviso, it was ordered that in the case of
Voluntary Vaccinators of the Animal Husbandry
Department, the maximum age limit shall be 50 years as on
the date on which they started working as part time
contingent employees on daily wages. Still further, an
WPC.35839/2004 : 3 :
additional Note was also incorporated in the Rules to the
effect that appointment to part time contingent posts in
Animal Husbandry Department shall be dispensed with till
all the Voluntary Vaccinators coming under the 4th proviso
are appointed in the Department.
8. Petitioner submitted Ext.P1 application before
respondent No.1 seeking appointment as a part time
contingent employee on the basis of his erstwhile service
as Voluntary Vaccinator for a period of one year,
particularly in the light of the amendments to Rule 3
referred to above.
9. To cut a long story short, respondent No.1 rejected
the application holding that petitioner did not have the
minimum period of one year’s service as Voluntary
Vaccinator as provided under the amended Rule. Ext.P4 is
the order passed by the Director in this regard. Though
petitioner produced his service particulars as Voluntary
Vaccinator to show that he had worked for more than a
year, respondent No.1 was not apparently impressed. He
issued Ext.P7 communication to the petitioner pointing out
another reason to reject his application. The Director found
that a part time employee can be appointed only if
WPC.35839/2004 : 4 :
sponsored through Employment Exchange as per the
Rules. The said communication was sought to be quashed
in the writ petition. The petitioner also prayed for other
consequential reliefs for his appointment as a part time
contingent employee.
10. The respondents have filed three counter
affidavits in this case. The sum and substance of the
contention raised by them is that :
(a) Petitioner had worked only for 221 days as
Voluntary Vaccinator during the period from March 26,
1986 till March 31, 1987 and
(b) Ext.P9 certificate allegedly issued by the Senior
Veterinary Surgeon attached to Varkala Veterinary hospital
certifying that petitioner had worked in that hospital during
the period from March 7, 1987 to September 2, 1987 being
a bogus and fabricated document, his contention that he had
worked as a Voluntary Vaccinator for 1 = years cannot be
accepted. Incidentally it was also pointed out that the
Scheme had already been scrapped on March 31, 1987
itself.
11. When this writ petition had come up for
consideration before me earlier, I had called for the relevant
WPC.35839/2004 : 5 :
files. I have perused them.
12. Before I make any reference to the relevant
papers in the file, it may at once be noticed that respondent
No.1 in his counter affidavit dated December 11, 2006 had
given the details of the service rendered by the petitioner as
Voluntary Vaccinator as hereunder:
Institution under which the petr.
Period Served as Voluntary Vaccinator No. of days.
————————————————————————————————————–
26.3.86 to 16.4.86 Veterinary Dispensary
Chemmaruthi 22
18.4.86 to 4.6.86 Do. 48
1.11.86 to 31.3.87 Veterinary Dispensary
Varkala
Veterinary Dispensary
Chemmaruthi 151
—————-
Total 221
—————
13. But in spite of the above categoric admission
made by respondent No.1, it is now contended by him that
since the petitioner had worked only for 221 days during the
period referred to above, his tenure of service cannot be
reckoned as one year as provided in the amended proviso to
Rule 3 of the Rules.
14. A perusal of the amended proviso will undoubtedly
show that the stipulation in the amended rule is only that a
WPC.35839/2004 : 6 :
Voluntary Vaccinator ought to have worked for a period of
one year or more under the Livestock Disease Control
Scheme. Since it is candidly admitted by respondent No.1
that the petitioner had worked during the period between
March 26, 1986 till March 31, 1987, in my view, there can
be no impediment for the petitioner to seek employment as a
contingent employee.
15. Significantly, respondent No.1 seems to have
been aware of this aspect because in Ext.P7 the only reason
stated by this respondent to reject the application of the
petitioner is that his name had not been sponsored by the
Employment Exchange. There is no reference to the newly
added proviso in Ext.P7. There is also no case for
respondent No.1 in Ext.P7 that petitioner did not have the
requisite service for a period of one year as Voluntary
Vaccinator.
16. It may be true that Ext.P9 certificate issued by the
Veterinary Surgeon attached to Varkala Veterinary Hospital
cannot be relied on, especially since the said Officer has
placed an affidavit on record before this Court that he had
issued the said certificate due to an oversight and without
verifying or perusing the relevant records. But the fact
WPC.35839/2004 : 7 :
remains that petitioner had worked as Voluntary Vaccinator
for one year as is conceded by respondent No.1. In that
view of the matter the stand taken by respondent No.1 that
petitioner was not entitled to get appointment as a part time
contingent employee on the strength of his past service as
Voluntary Vaccinator cannot be sustained at all.
17. In this context I may refer to yet another
aspect which will show that the attempt of the respondent
has been to deny employment to the petitioner under one
pretext or the other as rightly contended by the learned
counsel. In one of the counter affidavits it is asserted by
respondent No.1 that attendance register was not being
maintained in any of the institutions in respect of Voluntary
Vaccinators. But now respondent No.1 has referred to the
number of days the petitioner had worked right from
March 26, 1986. How did the Department get the exact
number of days on which the petitioner worked? There is no
answer. The files produced before me will show the details
of payment made by the Department to the petitioner on
the basis of the number of vaccinations given by him in the
course of his duty. A register was in fact being maintained
by the institutions concerned, in which the number of
WPC.35839/2004 : 8 :
vaccinations was being entered on daily basis.
18. I do not propose to refer to the various other
contentions raised by the respondents in their counter
affidavits since in my view they are not relevant or
pertinent. Suffice it to say that there is considerable force in
the contention raised by learned counsel for the petitioner
that the respondents were bent upon to deny employment
to the petitioner which he was legitimately entitled to get.
19. Having regard to the entire facts and circumstances
and having perused the materials available on record I am
satisfied that the petitioner is entitled to succeed.
20. Therefore Ext.P7 issued by respondent No.1 is
quashed. It is held that petitioner is entitled to be appointed
as a part time contingent employee in the Animal
Husbandry Department with immediate effect. He will be
entitled to get service benefits like seniority in the service at
least with effect from December 9, 2004 the date on which
this writ petition was filed. It is made clear that he will not
be entitled to any remuneration or such other monetary
benefits from that date.
21. Respondent No.1 shall issue appropriate orders
appointing the petitioner as a part time contingent employee
WPC.35839/2004 : 9 :
in the Department within one month from the date of receipt
of a copy of this judgment. Respondents shall pay a sum of
Rs.10,000/- as costs to the petitioner. Costs shall be paid
within three months from today.
A.K. Basheer
Judge.
an.