IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 454 of 2009()
1. N.D.MATHEW, S/O.NELSON, AGED 31 YEARS,
... Petitioner
2. SHERLY B.R., D/O.BHANU NADAR, AGED
Vs
1. STATE OF KERALA, REP. BY THE SECRETARY
... Respondent
2. THE DIRECTOR,
3. DISTRICT ANIMAL HUSBANDRY OFFICER,
For Petitioner :SRI.T.V.GEORGE
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :21/01/2010
O R D E R
K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ.
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W.A.Nos. 454 & 370 OF 2009
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Dated this the 21st day of January, 2010
J U D G M E N T
~~~~~~~~~~~
Balakrishnan Nair, J.
W.A.No. 454 OF 2009
The appellants are the writ petitioners. They were
persons, who have undergone training in artificial insemination
of cows. They submit, they were doing the artificial
insemination work at the grass root level. While so, the
Government issued Ext.P1 notification prohibiting artificial
insemination by private persons. It was also ordered that with
effect from the date of that order, the artificial insemination
should be done only through the institutions run by the
Department of Animal Husbandry. The appellants and similarly
placed persons were thrown out of employment as a result of
Ext.P1 order. To ameliorate the grievance of such persons, the
Government issued Ext.P2 order dated 19.2.2000 deciding to
engage persons like the appellants as Part-time Contingent
Employees under the Department of Animal Husbandry. It was
W.A.Nos.454 & 370/2009 2
also decided to amend the Special Rules governing appointment
to Part-time Contingent Service suitably to give effect to the
decision. Later, the Government by notification dated 26.12.2001
published in Kerala Gazette dated 3.1.2002 amended the Special
Rules for the Kerala Part-time Contingent Service in the
following manner:
"2. Amendment of the rules:- In the
Special Rules for the Kerala Part-time
Contingent Service, in rule 3,
(i) after the fifth proviso, the
following proviso shall not be added, namely:-
“Provided also that this rule shall not
apply in the case of appointment of persons
who were engaged as Artificial Inseminators
in Animal Husbandry Department for a period
of one year or more and trained in Artificial
Insemination in the Animal Husbandry
Department”.
(ii) after ‘Note 5’, the following
‘Note’ shall be added, namely:-
“6. Till all the Artificial Inseminators
coming under the fifth proviso are appointed
in the Animal Husbandry Department,
W.A.Nos.454 & 370/2009 3
appointment to the part-time Contingent posts
of Artificial Inseminators in Animal
Husbandry Department shall be dispensed
with. The rules of communal reservation and
rotation shall be followed in the appointment
to Part-time Contingent posts from among
Artificial Inseminators.”
(2) in sub-rule (a) of rule 5 after the
fourth proviso, the following proviso shall be
added, namely:-
“Provided also that in the case of
Artificial Inseminators of the Animal
Husbandry Department the maximum age limit
shall be 50 years as on the date in which they
started working as Part-time Contingent
Employees on daily wages”.
2. Immediately after Ext.P2, the competent authority
invited applications from eligible persons for engagement on
daily wage basis. The applications were to be submitted
between 3.12.2000 and 6.12.2000. According to the appellants,
they applied in time, but, they were never considered for
appointment as Part-time Contingent Employees. The
respondents have a different story. According to them, they
submitted the applications only in 2004. The persons, who
W.A.Nos.454 & 370/2009 4
applied and who were found eligible, were later absorbed as
Part-time Contingent Employees on the strength of Ext.P3
amendment.
3. The appellants approached this Court with the present
Writ Petition, seeking a mandamus to the respondents to appoint
them as Part-time Contingent Employees under the Animal
Husbandry Department. The respondents filed a detailed
counter affidavit stating that the appellants applied only in 2004
since their applications were highly belated, they were not
considered for appointment. The learned Single Judge, after
hearing both sides, dismissed the Writ Petition for the reason
that they did not apply pursuant to the notification in time.
Feeling aggrieved by the said judgment, the Writ Appeal is
preferred.
4. The learned counsel for the appellants submitted that
even assuming their applications were belated, they have a right
to be considered for appointment under the rules. It is also
pointed out that the respondents do not have a case that they are
W.A.Nos.454 & 370/2009 5
not qualified or eligible in terms of the rules for absorption. The
only ground taken is the delay from their part to apply in time.
The learned Government Pleader, on the other hand, submitted
that the amendment introduced, as per Ext.P3, was a transitional
provision, which is to remain in force for a limited period till the
absorption of the beneficiaries of that amendment in Part-time
Contingent Service. So, applications were invited and the
eligible persons were already absorbed. Thereafter, Ext.P3
amendment ceased to have any force. The appellants were
guilty of delay and laches and therefore, the Writ Petition was
rightly dismissed, it is submitted.
5. We considered the rival submissions made at the Bar.
Going by Ext.P3 amendment, we find that the persons mentioned
therein are entitled to be absorbed in Part-time Contingent
Service without being sponsored by the Employment Exchange
and only after exhausting the beneficiaries of that amendment
fresh recruitment could be made from the Employment
Exchange. The said right conferred by the statutory provision
cannot be curtailed by fixing a cut off date for submission of
W.A.Nos.454 & 370/2009 6
applications for getting the benefit of that rule, by an executive
order. If persons, who did not submit the applications within a
stipulated time, are to be made ineligible the rules have to be
amended correspondingly. No executive instruction or decision
can curtail the operation of a statutory provision. If there was
delay in submitting applications, their claim would be considered
only belatedly and if found eligible, they would be given the
benefits belatedly. By the delay, only the appellants suffered.
Therefore, there is no justification for throwing out their case on
the ground of delay.
6. In view of the above position, we are of the view that
the claim of the appellants for absorption as Part-time
Contingent Employees under the Animal Husbandry Department
requires reconsideration, in accordance with law. Accordingly,
the Writ Appeal is allowed, the judgment under appeal is
reversed and the Writ Appeal is disposed of with the following
directions:
The competent authority among the respondents shall
consider the claim of the appellants for absorption as Part-time
W.A.Nos.454 & 370/2009 7
Contingent Employees, in accordance with law, within four
months from the date of receipt/production of a copy of this
judgment. If any further materials are required to be submitted
by the appellants, they shall be called upon to submit them by
the said authority. In case, for any reason, any of the appellants
is found ineligible for want of qualification or the required
service of one year, he shall be given an opportunity to represent
on those deficiencies before final decision is taken. The persons,
who are found eligible, shall be absorbed in the next arising
vacancies in the department. Their appointment will take effect
only prospectively and the same will not affect the persons
already appointed, even if, they are appointed from the
Employment Exchange.
W.A.No.370/2009:
7. The point raised by the appellants herein is covered
by the judgment in W.A.No.454/2009. But, the learned
Government Pleader, who appeared for the respondents, pointed
out that the appellants herein appeared to be not qualified
W.A.Nos.454 & 370/2009 8
having regard to the materials on record. These are matters for
the competent authority to decide while considering the claim of
the appellants.
In the result, the Writ Appeal is also allowed in terms of the
directions issued in W.A.No.454/2009.
(K.BALAKRISHNAN NAIR, JUDGE)
(C.T.RAVIKUMAR, JUDGE)
ps