High Court Kerala High Court

M.Vijayakumar vs Director on 8 September, 2010

Kerala High Court
M.Vijayakumar vs Director on 8 September, 2010
       

  

  

 
 
  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.

– – – – – – – – – – – – – – – – – – – – – – – – – – – –

W.P (C)No. 35839 of 2004

– – – – – – – – – – – – – – – – – – – – – – – – – – – – –

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.