IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM FRIDAY, THE 11TH DAY OF NOVEMBER 2011/20TH KARTHIKA 1933 WP(C).No. 28313 of 2010 (L) --------------------------- PETITIONER(S): --------------------------- M.ABOOBACKER,S/O.MUHAMMED MOIDEEN, AGED 66 YEARS,AL SALJAH MANZIL,NETAJI ROAD, POOJAPURA P.O, THIRUVANANTHAPURAM -695 012. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): ---------------------------- 1. CHAIRMAN, KERALA HEAD LOAD WORKERS' WELFARE FUND BOARD,THIRUVANANTHAPURAM- 695 001. 2. KERALA HEAD LOAD WORKERS' WELFARE FUND BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY -695 001. 3. CONVENER, KERALA HEAD LOAD WORKERS' WELFARE FUND BOARD, TRIVANDRUM LOCAL COMMITTEE, THIRUVANANTHAPURAM- 695 001. 4. A.KABEER,T.C.17/1017,OPPOSITE SBT HEAD OFFICE, KRISHNAVILAKATH ROAD, POOJAPURA P.O., THIRUVANANTHAPURAM -695 012. R1 TO R3 BY ADV. SRI.KOSHY GEORGE, SC, KHLWWB R4 BY ADV. SRI.GRASHIOUS KURIAKOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.28313/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE IDENTITY CARD ISSUED TO THE PETITIONER IN FORM 'C' BY THE KERALA HEAD LOAD WORKERS WELFARE FUND BOARD, THIRUVANANTHAPURAM P2 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 15/9/2004 P3 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 16/2/2005 P4 COPY OF THE APPLICATION BY THE SISTER'S SON OF THE PETITIONER DATED 3/2/2006 P5 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 10/9/2009 P6 COPY OF THE INTIMATION SENT BY THE 1ST RESPONDENT TO THE DIRECTOR OF HEALTH SERVICE DATED 17/8/2005 P7 COPY OF THE REPRESENTATION DATED 31/7/2006 SUBMITTED BEFORE THE HONOURABLE MINISTER FOR LABOUR. P8 COPY OF THE JUDGMENT DATED 15/3/2010 IN WP(C)NO.8411/2010 P9 COPY OF THE ORDER NO.E6-614/10 DATED 26/5/2010 RESPONDENT'S EXHIBITS: R1(A) COPY OF THE CREDIT AUTHORISATION FOR RTB ¼ PENSION/FP DATED 8/8/09 R1(B) COPY OF THE RECEIPT DATED 18/9/09 /TRUE COPY/ P.A.TO.JUDGE sts C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C) No.28313 of 2010 ------------------------------------------- Dated this the 11th day of November, 2011 J U D G M E N T ---------------------- The petitioner was a registered headload worker under the Kerala Headload workers (Regulation of employment and Welfare) Scheme, 1983 (hereinafter referred to as 'the Scheme'). He was included in Pool No.53 (Poojappura) constituted by the 3rd respondent. Ext.P1 is the Identity Card issued under clause 6A(3) of the Scheme. On 15.9.2004 the petitioner submitted Ext.P2 request before the 2nd respondent for providing employment to his sister's son, Sri.Nujumudeen as his dependent since he was completely laid up due to illness after 2004 and is not in a position to continue headload works. Since Ext.P2 application was not considered, the petitioner again submitted Ext.P3 on 16.2.2005 repeating the demand. An application in the prescribed format was submitted by the said Sri.Nujumudeen as evidenced from Ext.P4, on W.P.(C).28313/10 -2- 3.2.2006, supported by a certificate of physical fitness in relation to the petitioner. The petitioner was informed that as per provisions of the Scheme, sister's son is not entitled to apply for dependent employment. Therefore Ext.P5 application was submitted in the prescribed form by the son of the petitioner, namely Sri.Syedali. Thereafter application submitted in this regard was forwarded by the 2nd respondent to the Director of Health Service, Thiruvananthapuram for obtaining opinion of Medical Board. It is stated that the petitioner had appeared before the Medical Board and a certificate was issued to the effect that he is physically disabled from continuing headload works. The said certificate was issued on 15.12.2005. Since there was no positive response from the authorities concerned, even after obtaining opinion of the Medical Board, the petitioner had approached this court in W.P(C). 8411/2010. In Ext.P8 judgment this court directed the 1st respondent to consider and dispose of the application submitted by the petitioner and to pass appropriate orders thereon. Ext.P9 is the order issued by the 1st respondent in compliance with W.P.(C).28313/10 -3- the direction contained in Ext.P8 judgment. Considering the application submitted for dependent employment, it was informed that request for dependant employment cannot be entertained since the petitioner had attained superannuation on 20-08-2005, i.e., exactly after 4 days of his submitting application for engaging his sister's son, on 16-08-2005. It is further stated that the amendments to clause 6(C) providing dependent employment to a headload worker, who is permanently disabled, was introduced for the first time on 6.9.2007. Therefore as on the date of application or as on the date of the retirement of the petitioner there was no such provision enabling engagement of any dependent worker. It is also stated that, after retirement on 31.8.2005 the petitioner was sanctioned with monthly pension on retirement and the petitioner had received such amounts. The 1st respondent also observed that even the certificate of the Medical Board was issued only on 15.12.2005 i.e. after his retirement from the Board. It is stated that even if the petitioner had produced Disability Certificate and applied for engagement of the dependent during any appropriate W.P.(C).28313/10 -4- time before his retirement such application could not have been considered since at that time there was no provision enabling engagement of dependent of a headload worker who had sustained permanent disability. The petitioner is challenging the decision taken in Ext.P9 in this writ petition. 2. In the counter affidavit filed on behalf of 1st respondent it is contended that the reasoning mentioned in p9 is valid and sustainable. It is stated that the petitioner on completion of 60 years was removed from the roll with effect from 31.8.2005 and there is no provision in the scheme to give appointment to the dependent of a retired worker. It is further stated that the petitioner is now a pensioner and the Board has sanctioned monthly pension to the petitioner on his attainment of superannuation. Exhibits R1(a) and R1(b) documents are produced to show that the petitioner was sanctioned with pension and that he had already received pension due on retirement, with effect from 1.9.2005 onwards. 3. From the facts and circumstances it is evident that the petitioner had applied for employment of the dependent W.P.(C).28313/10 -5- only at the wake of his retirement. It is further evident that he has not obtained any recommendation from the Medical Board with respect to the total and permanent disability, before his retirement. In the case at hand, the petitioner had attained superannuation and had applied and obtained sanction for monthly pension. It is further evident that he had already received monthly pension sanctioned to him on his retirement. Apart from all, even assuming that petitioner had submitted proper application for employment of the dependent or if any of the dependents of the petitioner had submitted any such application prior to his retirement, the same could not have been sanctioned under the provisions of the scheme then prevailing. The scheme at that point of time had not provided employment for a dependent in the case of a headload worker who had sustained permanent disability. The provision for employment of dependent was introduced for the first time only on 6.9.2007. Therefore it is evident that the relevant provisions which was in force as on the date of application and on the date of retirement does not permit the petitioner to seek employment of his dependent W.P.(C).28313/10 -6- on the ground of permanent disability. 4. Sri.P.V.Kunhikrishnan, learned counsel for the petitioner contended that the eligibility need to be decided based on the provisions prevailing as on date of consideration of the application and not as on date of submission of the application. He relies on a decision of tis court in Asset homes (P) Ltd. Vs. State of Kerala (2011 (1) KLT 257) in which it is held that with respect to an application for Building Permit under the Kerala Building Rules 1997, decision need be taken in accordance with that law which is prevailing on the date of sanctioning of permit and not in accordance with the law which was prevailing as on the date of submission of such application. I do not think that the legal proposition as stated above cannot be imported to the case at hand, because the petitioner is seeking for compassionate employment of the dependent based on the specific provisions contained in the Scheme. The petitioner is entitled for submitting such application only if the Scheme provides for such employment as on the date of the application submitted. Hence the eligibility need W.P.(C).28313/10 -7- to be considered based on the provisions prevailing as on date of the application. Further it is evident that the petitioner himself had chosen to avail pensionary benefits sanctioned to him on the basis of the retirement. After attainment of superannuation and after accepting monthly pension on retirement he cannot be allowed to claim employment to the dependent on the basis that he was permanently disabled even prior to the retirement. Further it is noticed that the authenticated certificate regarding disability issued by the Medical Board was obtained long after retirement of the petitioner. 5. Therefore I find no illegality with the decision taken by the 1st respondent as per Ext.P9. Accordingly the writ petition fails and the same is hereby dismissed. (Sd/-) C.K.ABDUL REHIM, JUDGE. okb True copy P.A to Judge