IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 WA.No. 454 of 2009 ------------------------ THE JUDGEMENT IN W.P.(C).NO.24195/2005 DATED 04/12/2008 OF THIS HON'BLE COURT. .................... APPELLANTS/PETITIONERS: ------------------------------------------ 1. N.D.MATHEW, S/O.NELSON, AGED 31 YEARS, ANTO NIVAS, KALLIYOOR P.O., THIRUVANANTHAPURAM. 2. SHERLY B.R., D/O.BHANU NADAR, AGED 29 YEARS, KARUPPAN KAVU, CHRISTHU BHAVAN, CHANGA KARA, VELLANAD VILLAGE, THIRUVANANTHAPURAM. BY ADV. MR.T.V.GEORGE. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO AGRICULTURE (AH) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, ANIMAL HUSBANDRY DEPARTMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. DISTRICT ANIMAL HUSBANDRY OFFICER, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SMT. SMITHA SUKUMARAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2010, ALONG WITH W.A NO.370 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. --------------------------------------- W.A.Nos. 454 & 370 OF 2009 ---------------------------------------- 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