IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WA.No. 2929 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.8862/2001 Dated 12/06/2007 .................... APPELLANTS/ APPLICANTS/APPELLANTS/RESPONDENTS --------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, AGRL, (FAMRS) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE AGRICULTURE DIRECTOR, DEPARTMENT OF AGRICULTURE, TRIVANDRUM. 3. THE PRINCIPAL AGRICULTURE OFFICER, COLLECTORATE, KOTTAYAM. BY GOVERNMENT PLEADER, SMT.R.BINDU RESPONDENT/ PETITIONER ------------------------- MATHAI DEVASIA, S/O. MATHAI, EDATTU HOUSE, URUMPUMYALIL, KOZHAKARA, KURAVILANGAD VILLAGE, MEENACHIL TALUK. ADV. SRI.ABRAHAM MATHEW (VETTOOR) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ---------------------------------------- W.A. No. 2929 OF 2007 ---------------------------------------- Dated this the 27th day of March, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in O.P.No.8862/2001 are the appellants. The respondent herein was the writ petitioner. The respondent/petitioner was working as a Casual Labourer in the Kozha Seed Farm. According to him, he completed 1001 days' service by 1990. The respondent has also a claim that he has worked for 200 days in the neighbouring District Agriculture Farm, which is also located at Kozha. The days of work to his credit in the subsequent years are as follows: Year No. of Days 1991 122 1992 89.5 1993 140.5 1994 113.5 1995 162.5 2. According to the respondent, earlier there was a stipulation that, even if there is a vacancy in the cadre of W.A.No.2929/2007 2 permanent farm worker, casual labourers were regularised, if only, they have 240 days' service in the preceding year. The said stipulation was not insisted upto 1994 and several of the respondent's colleagues were regularised also without insisting the service for 240 days. But, the said stipulation was again introduced in 1994. Some of the affected workers of Agricultural Farm, Malappuram, challenged the said stipulation. This Court, by Ext.P3 judgment, declared that without insisting for 240 days' service, the seniors among the causal workers can be regularised in the vacancies available in the sanctioned strength of permanent farm workers. The said decision was affirmed in Writ Appeal as per Ext.P4 judgment. Later, the Government themselves came forward and issued an order dated 24.11.1999 stating that 240 days' service in the previous year need not be insisted for regularisation of casual workers. Based on that order, the claim of the respondent was considered for regularisation as per Ext.P16 by the Principal Agricultural Officer, Kottayam. It was found that though there were four vacancies of permanent male workers in the Kozha Seed Farm, only one male worker, who was the respondent, alone was W.A.No.2929/2007 3 available in that farm, for regularisation. Since he already crossed the age of superannuation in 1996, he was asked to give an option for continue in service upto the age of 60 years. The respondent did not give any option as directed, but, he continued upto one day prior to the date on which he attained the age of 60 years and retired from service on that date. Later, the respondent claimed pensionary benefits counting the service rendered by him upto the date of his retirement on the strength of Ext.P18, which is a clarification issued by the Government on a query made by the Accountant General. He also claimed that he should have been regularised atleast in 1994 as vacancies were available and he was the senior most casual labourer available in his farm at that time. Since his claims were not acceptable to the appellants, the writ petition was filed seeking appropriate reliefs. 3. The appellants resisted the Writ Petition by filing a counter affidavit. But the learned Single Judge relying on Ext.P18 declared that the respondent/petitioner is entitled to count the service rendered by him from the date of Ext.P16 to the date of W.A.No.2929/2007 4 actual retirement and the Original Petition was allowed. Aggrieved by the said direction, this Writ Appeal is filed. 4. We heard the learned counsel on both sides. We notice that Ext.P18 is applicable only to those casual labourers, who were in service as on 1.1.1980 and who have already crossed the age of superannuation on that date. But, the learned Judge proceeded on the footing that Ext.P18 is applicable even now. Going by Rule 5 read with Rule 7A of the Agriculture Departmental Farm Workers' Pension Rules, we are of the view that Ext.P18 will apply only to those casual workers who were in service as on 1.1.1980, the date on which the said Rules came into force. So, the reliance placed by the learned Single Judge on the said Rules and grant of benefit to the respondent/petitioner based on them are not sustainable. But, we feel that the claim of the respondent under prayer No.(v) in the Original Petition has to be considered by the competent authority. Technically, it may be said that when his claim was not considered in 1994, he should have immediately approached this Court. But, it is quite unrealistic to expect such vigilant conduct W.A.No.2929/2007 5 from a farm worker, working in a remote village. Further, he also cannot afford to come to this Court, even if he is suffering an injustice. So, appellants 2 and 3 are directed to consider the claim of the respondent for regularization in service in the vacancy available in the cadre of Male Farm Worker before his date of superannuation. If he is found eligible for regularization on a date prior to his date of superannuation, his claim for pension shall be considered in the light of the provisions of the Agriculture Departmental Farm Workers' Pension Rules. We notice Rule 8 as also Rule 4(e) and based on the said Rules the respondent may be eligible to get some pension, provided he is regularized prior to his date of superannuation on attaining the age of 55 years. The fact that he continued in service even after attaining the age of 55 years shall be ignored and the same shall not be taken as a disqualification, while considering his claim for pension. The above claim of the respondent shall be considered and settled by appellants 2 and 3 within four months from the date of receipt of a copy of this judgment. While considering the claim of the appellant for regularization, the stipulation that he should have worked for 240 days during the preceding year W.A.No.2929/2007 6 cannot be insisted, in view of Ext.P3 judgment, which was affirmed by the Division Bench in Ext.P4 judgment. The respondent's claim shall be considered based on his seniority among the casual labourers, ascertained with reference to the number of days worked by him in the farms, in accordance with the relevant Orders/Rules. The Writ Appeal is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps