IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 WP(C).No. 4318 of 2010(L) ------------------------ PETITIONER : --------------------- C.S.SANAL, CHANGARAMPURATH HOUSE, PANAMUKU, NEDUPUZHA.P.O, THRISSUR. BY ADV. SRI.DEEPU THANKAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA ABKARI WORKERS WELFARE FUND BOARD THIRUVANANTHAPURAM. REP.BY ITS CHIEF WELFARE FUND INSPECTOR. 3. KERALA STATE BEVERAGES (M & M) CORPORATION LTD., SASTHAMANGALAM, THIRUVANANTHAPURAM. REP.BY ITS MANAGING DIRECTOR. 4. THE WELFARE FUND INSPECTOR, KERALA ABKARI WORKERS WELFARE FUND BOARD, THRISSUR. R1 BY GOVT. PLEADER SRI. C.R. SYAMKUMAR R2 & R4 BY ADVS. SRI KOSHY GEORGE, SC, KAWWFB SRI.ROY CHACKO, SC SRI. M.K. CHANDRAMOHAN DAS R3 BY ADVS. SRI.C.S.AJITH PRAKASH, SC SRI. ELVIN PETER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 4318 of 2010(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE IDENTITY CARD ISSUED TO LATE K. SANKARANARAYANAN BY THE ABKARI WORKERS WELFARE FUND BOARD. EXT.P2 : COPY OF THE GOVT. ORDER ISSUED BY THE 1ST RESPONDENT DATED 7/8/2004. EXT.P3 : COPY OF THE COMMUNICATION DATED 3/8/2005 OF WELFARE FUND INSPECTOR, THRISSUR. EXT.P4 : COPY OF THE CONSENT LETTER OF THE MOTHER OF THE PETITIONER. EXT.P5 : COPY OF THE DEATH CERTIFICATE OF THE FATHER OF THE PETITIONER DATED 27/1/1998. EXT.P6 : COPY OF THE CERTIFICATE FROM THE TAHASILDAR DATED 1/8/2005. EXT.P7 : COPY OF THE MINUTES OF THE MEETING HELD ON 19.10.2005 ISSUED BY THE GOVERNMENT ALONG WITH A LETTER DATED 7.12.2005. EXT.P8 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP NO. 26878/2007 DATED 3/4/2009. EXT.P9 : COPY OF THE GOVT. ORDER DATED 30/4/2009. EXT.P10 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT ON 6/7/2009. EXT.P11 COPY OF THE REPRESENTATION DATED 9/10/2009. EXT.P12 COPY OF THE INTERIM ORDER IN WP NO. 503/2006 DATED 20/1/2006. RESPONDENT'S EXHIBITS : EXT.R3(a) : COPY OF THE ORDER, G.O. DATED 20-2-2002 ISSUED BY THE GOVERNMENT. EXT.R3(b) : COPY OF THE ORDER DATED 28-12-2006 ISSUED BY THE GOVERNMENT. (Contd...) WP(C).No. 4318 of 2010(L) EXT.R3(c) : COPY OF THE NEWS ITEM PUBLISHED IN THE MATHRUBHUMI DAILY DATED 28-7-2005. EXT.R3(d) COPY OF THE ORDER, G.O. DATED 22-6-2009 ISSUED BY THE GOVERNMENT. //TRUE COPY// P.S. TO JUDGE Mn C.K. ABDUL REHIM,J. ------------------------------------------------- W.P.(c) No. 4318 OF 2010 ------------------------------------------------- DATED THIS THE 8th DAY OF NOVEMBER, 2011 J U D G M E N T The petitioner is the son of late. Sri. Sankaranarayanan who was an Abkari worker, who allegedly committed suicide on loss of employment due to ban on Arrack imposed by the State. The State Government later formulated a scheme for rehabilitation of dependent sons of Arrack workers who had perished consequent to loss of employment due to the ban imposed on Arrack, as daily waged employees in the 3rd respondent Corporation. Exhibit P2 is the Government order issued in this regard, dated 07-02-2004. Under Ext.P2 25% of the vacancies of daily wage employment in the 3rd respondent Corporation was directed to be earmarked for such dependent persons, subject to condition that the dependent sons should not have completed 38 years of age. It is clarified that a list of eligible candidates shall be evolved on the basis of such guidelines, by the 2nd respondent. W.P.(c) No.4318/2010 -2- 2. The father of the petitioner committed suicide after he lost his employment as Abkari worker, on 02-01-1998. On the basis of Ext.P2 the petitioner submitted application to the 2nd respondent, through the 4th respondent. As per Ext.P3 communication the petitioner was required to rectify certain defects noted in the application, which the petitioner had done as evident from Exts.P4 to P6. On 19- 10-2005 a meeting was convened by the State Government in the presence of the Hon'ble Minister for Labour in order to discuss and to formulate norms for preparation of list of eligible candidates for appointment under Ext.P2 scheme. The following decisions were taken, as revealed from Ext.P7 minutes of the meeting. (i) The list of eligible sons will be arranged in the order of date of death of the Arrack workers so that the sons of arrack workers who died during the earlier period of arrack ban will be benefited. (ii) Only the dependent of those who has not attained the age of 60 years at the time of death will be considered to be included in the list. (iii) For calculation of the upper age limit of 38 years, the date of G.O. No.567/2004/TD, Viz, 07-08-2004 will be reckoned. A State-wide list on the above basis will be prepared by the Chief Welfare Fund Inspector, Kerala Abkari Workers' Welfare Fund Board, urgently and submitted to Government. W.P.(c) No.4318/2010 -3- 3. Even though it is learnt that 2nd respondent had prepared a list of eligible candidates, the petitioner's name was not included. On enquiry it is revealed that 2nd respondent had not included the name of of the petitioner, because he had taken a stand that those applicants who had not attained the age of 18 years as on the date of Ext.P2 (07-08-2004) are not eligible. 4. It is known that out of 265 persons applied, 51 persons got employment under the 3rd respondent corporation. Thereafter, this Court in Ext.P8 judgment (W.P (c) No.26878/2007, dated 03-04-2009), held that limiting of the number of persons as 51 is unsustainable and directed to include the remaining persons in the list of dependent sons for providing employment. On the basis of the above said judgment, Ext.P9 order was issued by the Government, according sanction for appointment 214 persons out of the 265 persons selected for appointment. 5. On coming to know about the above situation, te petitioner made request to the 4th respondent through W.P.(c) No.4318/2010 -4- Ext.P10. Subsequently another representation as per Ext.P11 was also submitted before the 1st respondent. However the 2nd respondent has not taken any action for recommending the petitioner for appointment under the scheme. 6. Admittedly, as on the date of Ext.P2 the petitioner had not attained the minimum age limit of 18 years. But according to the petitioner, the denial of employment offered under the rehabilitation scheme on assigning any such reason is unsustainable. It is contended that the 2nd respondent has no authority to change any of the criteria specified for selection in Exts.P2 and P7. Therefore this writ petition is filed seeking directions to respondents 1 and 2 to forward the name of the petitioner to the 3rd respondent for appointment against the 25% quota earmarked for dependents of Abkari workers under Ext.P2 scheme. 7. In the counter affidavit of the 2nd respondent it is stated that, as per Ext. P2 the Government have decided to include all dependent sons who have not completed 38 W.P.(c) No.4318/2010 -5- years of age in the eligible list. In Ext.P7 it is clarified that the upper age limit need be reckoned as on the date of Ext.P2. Even though no lower age limit is indicated in those two documents, the fact remains that the minimum age of 18 is the prescribed eligibility for all the appointments in public sector and for appointments through the Public Service Commission. Further, as per Clause 18 of the Service Rules governing appointments in the 3rd respondent corporation, attainment of 18 years is essential. According to the 2nd respondent, relying on the above said criteria and considering the cut-off date fixed in Ext.P2 with respect to upper age limit, he had adopted a cut-off date with respect to attainment of minimum age limit. Further contention is that the petitioner has not attributed anything in fixing such cut-off date. The 2nd respondent was only obeying the executive order, is the contention. It is also contended that the 2nd respondent has not taken any arbitrary decision in fixing the cut-off date and it is only a criteria provided for appointments in public sector. It is further stated that such W.P.(c) No.4318/2010 -6- cut off date was fixed to restrict employment of those who have not attained majority. 8. The 1st respondent in their counter affidavit contended that, it need not be always necessary that all the criteria would be finalized before announcing a scheme. It is stated that when a cut-off date is prescribed, it is the normal rule that both the minimum and maximum age should be counted on the basis of a single factor. Analogues situations in the case of PSC selections, is pointed out to content that fixation of cut-off date as on the date of formulation of the scheme, could not be assailed. It is further contended that, even though the petitioner has attained the age of 18 years as on the date of application, he has not attained the minimum age as on the prescribed date. According to the Government, if the argument of the petitioner is accepted, even those who attain the age of 18 years as on today, would have to be given employment. Since the petitioner in this case is an ineligible person there is no arbitrariness or illegality involved in not including his W.P.(c) No.4318/2010 -7- name in the list, is the contention. 9. The 3rd respondent in its counter affidavit stated that, after Ext.P8 judgment, all the persons included in the eligible list prepared by the 2nd respondent were given employment. According to the 3rd respondent unless the Government have included the name of the petitioner in the eligible list, no employment can be provided. The 3rd respondent further pointed out that, this Court had deprecated the practice of engaging daily wage employees in the Corporation, through a Division Bench decision reported in ILR 2006 (4) Ker. 265 and directed the Corporation to engage daily wage workers only from the list obtained through the Employment Exchange. It is further stated that the petitioner had completed the age of 18 years only on 30-05-2005 and hence he was not eligible as on the date of Ext.P2. 10. Factual matrix of the case remains that, as on the date of submission of application for employment by the petitioner, pursuant to Ext.P2 Government order, he had W.P.(c) No.4318/2010 -8- attained the age of 18 years. The question posed is as to whether the petitioner is eligible for appointment based on Exts. P2 and P7. As already observed, Ext.P2 order prescribes only about the upper age limit of 38 years. While formulating guidelines for preparation of list of eligible candidates, it was clarified that the upper age limit should be reckoned as on the date of Ext.P2. It is admitted by all the parties that, neither in Ext.P2 nor in Ext.P7 there is no prescription of any minimum age limit. Therefore the question to be decided is as to whether the 2nd respondent was right or justified in not including the petitioner's name for the reason that he had not completed 18 years as on the date of Ext.P2. Exhibit P2 scheme was formulated on 07-08- 2004. The meeting for formulating norms for implementing Ext.P2 and for preparation of the seniority list, was held on 19-10-2005. The petitioner had attained the age of 18 years as on 30-05-2005, i.e; after Ext.P2 Government order and before formulating norms as per Ext.P7. It is stated that the application was submitted on 01-08-2005, after Ext.P2 W.P.(c) No.4318/2010 -9- order was notified. Exhibit R3 (c) is the extract of the publication made through newspaper, inviting applications from eligible candidates. As per the said notification those who are eligible were required to submit applications before 08-08-2005. Therefore, on the facts it is evident that, the petitioner had attained the age of 18 years as on the date prescribed for submitting applications, and also on the date when he submitted application. 11. Whether the 2nd respondent was justified in not including the name of the petitioner in the eligible list, prescribing a cut-off date for attaining the minimum age limit is the question to be decided. Contention of the 2nd respondent is that such a prescription is reasonable and no arbitrariness can be attributed. But the real question is as to whether the 2nd respondent was empowered to fix such a cut-off date, when there is no such prescription in the scheme, which is formulated by the Government. Of course, contention that the petitioner may not be eligible for employment under the 3rd respondent, if he has not attained W.P.(c) No.4318/2010 -10- the age of 18 years, can be accepted. But admittedly as on the date of application or as on the date prescribed for submitting applications, the petitioner had attained such minimum eligibility. Government is the formulator of the compassionate scheme which was intended to rehabilitate dependents of the victims of ban on Arrack. Second respondent is authorised only for preparing a list of eligible candidates and to submit the same to the Government, for the purpose of directing the 3rd respondent to provide employment to such eligible persons. Under such circumstances, was the 2nd respondent competent to introduce any criteria of eligibility by his own or to fix a cut- of date for attainment of the eligibility. I am of the considered opinion that, it was totally beyond the powers or competence of the 2nd respondent. Even admitting that, unless the petitioner attains the age of 18 years he may not be entitled for employment, fact remains that he was eligible as on the date of application. Therefore, he could not be denied of opportunity by assigning a cut-off date, W.P.(c) No.4318/2010 -11- without any power vested on the 2nd respondent. Therefore, the non-inclusion of the petitioner's name in the eligible list cannot be upheld. 12. Under the above mentioned circumstances, I am of the view that the petitioner is a person eligible to be included in the list for engagement as daily wage employee in the 3rd respondent corporation, by virtue of through Ext.P2, which is clarified and prescribed through Ext.P7. 13. In the result the writ petition is allowed, and the 2nd respondent is directed to forward the name of the petitioner as an eligible candidate to be engaged as daily wage employee in the 3rd respondent Corporation, if he is otherwise eligible in all respects. 14. The needful in this regard shall be done by the 2nd respondent within one month from the date of receipt of a copy of this judgment. The concerned authority in the 1st respondent, on receipt of such inclusion, shall forward the name of the petitioner for engagement in the 3rd respondent corporation, in any of the next available vacancy W.P.(c) No.4318/2010 -12- of daily wage employees. Needless to say that if any such direction is received, the 3rd respondent shall take necessary steps for engagement of the petitioner without any further delay. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge