IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 WP(C).No. 35839 of 2004(N) -------------------------- PETITIONER(S): --------------- M.VIJAYAKUMAR, MELEVILA VEEDU, MANAMPOOR (P.O), THIRUVANANTHAPURAM. BY ADV. SRI.M.RAJAGOPALAN NAIR RESPONDENT(S): --------------- 1. DIRECTOR, ANIMAL HUSBANDRY DEPARTMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, ANIMAL HUSBANDRY DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER FOR R1 SMT.REKHA C NAIR. SRI.ELVIN PETER P.J. FOR ADDL.R.3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE APPLICATION DT. 30/1/2001 SUBMITTED BY PETR. EXT.P2: TRUE COPY OF SPECIAL RULES. EXT.P3: TRUE COPY OF AMENDED SPECIAL RULES. EXT.P4: TRUE COPY OF LETTER SENT BY FIRST RESPONDENT TO PETR. DT. 21/3/2001. EXT.P5: TRUE COPY OF REPRESENTATION DT. 19/12/2001. SENT BY PETR. TO R1. EXT.P6: TRUE COPY OF APPLICATION DT. 29/4/2003 SUBMITTED B Y PETR. BEFORE R1. EXT.P7: TRUE COPY OF LETTER DT. 12/3/2004 SENT BY R1 TO PETR. EXT.P8: TRUE COPY OF REPRESENTTION DT. 7/6/2004. EXT.P9: TRUE COPY OF CERTIFICATE ISSUED BY THE SENIOR VETERINARY SURGEON. EXT.P10: TRUE COPY OF DIRECTION ISSUED BY THE FIRST RESPONDENT TO THE SENIOR VETERINARY SURGEON, VARKALA. RESPONDENTS' EXHIBITS: EXT.R1(A): TRUE COY OF CERTIFICATE PRODUCED BY PETR. TO DIRECTOR OF ANIMAL HUSBANDRY. EXT.R1(A): COPY OF CERTIFICATE DT. 24/9/90 ISSUED BY PROJECT OFFICER, LIVESTOCK DISEASE CONTROL, TVM. Ext.R1(C); COPY OF GOVT. ORDER DATED 21/4/1983 (go.mS.113/83/AD. EXT.R1(D): COPY OF RECEIPT ISSUED BY PETR. EXT.R1(E): COPY OF RECEIPT ISSUED BY PETR. DT. 13/8/1986. EXT.R1(F): COPY OF RECEIPT ISSUED BY PETR. DATED ¾/1987. EXT.R1(G): COPY OF APPLICATION SUBMITTED BY PETR. EXT.R1(H): COPY OF SHOW CAUSE NOTICE DT. 4/11/2006. EXT.R3(A): TRUE COPY OF VACCINATION REGISTER. EXT.R3(b): TRUE COPY OF MEDICAL RECORDS ISSUED FROM THE DEPT. OF CARDIOLOGY, MEDICAL COLLEGE, TRIVANDRUM. EXT.R3(c): TRUE COPY OF SHOW CAUE NOSTICE DT. 4/11/2006. EXT.R3(D): TRUE COPY OF REPLY DT. 26/12/2006. 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 ½ 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.