WA No. 720 of 2018 against the judgment in WPC 40972/2016, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945** **WA NO. 720 OF 2018 AGAINST THE JUDGMENT IN WPC 40972/2016 OF HIGH COURT OF KERALA** ## **- APPELLANTS/PETITIONERS 1, 5, 7 & 9 12:** 1 JOJU K.J S/O JOSHY.P.K, NEDUMPILLIL HOUSE,SOUTH PARAVOOR P.O.,POOTHOTTA, ERNAKULAM. 2 SHANIL K.V KOROTH HOUSE, VARAM P.O, KANNUR-670594. 3 GIREESH VELUTHETHODI HOUSE, ERATHI MANGAD P.O,NILAMBUR, MANNUPADAM, MALAPPURAM-679343. 4 JAYAPRASAD.T POOVADIYIL HOUSE, CHERIYELA, ALUMOOD P.O., KOLLAM. 5 P.P. SANOOJ PUNNAKKATTUPARAMBIL HOUSE,VILAYOOR P.O, PATTAMBI, PALAKKAD-679309. 6 SREEJITH PATHIRIKKADU HOUSE, CHEMMATHIRIKADU P.O,MALAPPURAM679325. 7 MANU. S.NAIR NADUKKEULIYIL HOUSE, THEKKETHU KAVALA P.O.,CHIRAKADAVU KAVAL P.O,. CHIRAKADAVU, KOTTAYAM, PIN-686519. BY ADVS. SRI.T.A.SHAJI (SR.) SRI.S.ABHILASH VISHNU SRI.ATHUL SHAJI KUM.NAIR ANUJA GOPALAN **WA NO. 720 OF 2018** **2** ## **RESPONDENTS/RESPONDENTS IN THE WP(C):** - 1 KERALA STATE BEVERAGES CORPORATION LIMITED. BEVCO TOWER, VIKAS BHAVAN P.O,PALAYAM, THIRUVANANTHAPURAM-695010,REPRESENTED BY ITS MANAGING DIRECTOR. - 2 THE CHIEF WELFARE FUND INSPECTOR KERALA ABKARI WORKERS WELFARE FUND BOARD,KCP BUILDINGS, ARYASALA, THIRUVANANTHAPURAM, PIN-695036 - 3 KERALA ABKARI WORKERS WELFARE FUND BOARD REPRESENTED BY THE CHIEF WELFARE FUND INSPECTOR,KCP BUILDINGS, ARYASALA, THIRUVANANTHAPURAM, PIN-695036. - 4 THE SECRETARY TO GOVERNMENT DEPRATMENT OF LABOUR AND REHABILITATIONSECRETARIAT, THIRUVANANTHAPURAMPIN-695001. - 5 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVT.,TAXES DEPARTMENT, GOVT.OF KERALA,SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. BY ADV SRI.NAVEEN.T., SC, KERALA STATE BEV.CO. M. AND M. ## **OTHER PRESENT:** SR GP SRI BIMAL K NATH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WA NO. 720 OF 2018** **3** ## JUDGMENT ## Amit Rawal, J. Present intra court appeal is preferred against the judgment of the Single Bench whereby the benefit of scheme dated 7.8.2004 promulgated by the Government has been extended to petitioner Nos.2, 3 and 14 and denied the appellants ie., petitioners Nos. 1, 5, 7 and 9-12. 2. The State of Kerala on 1.4.1996 imposed a ban for sale of arrack in the State which lead to deprivation of livelihood, of approximately 12,500 arrack workers. In lieu of rehabilitation, certain workers were given compensation in terms of money and exgratia. But the demand of the displaced arrack workers for rehabilitation kept on knocking the door of the Government which led to a promulgation of a scheme / order dated 20.2.2002. The said order was assailed in this Court vide W.P.(C) No.19204 of 2005 and connected cases. Vide judgment dated 29.5.2015, the claim of the abkari **WA NO. 720 OF 2018** **4** workers who were covered by the Government order dated 20.2.2002 was upheld. The Division Bench also affirmed the judgment of the Single Bench. State of Kerala filed an appeal before the Hon'ble Supreme Court. Supreme Court in its reported judgment in Kerala State Beverages (M and M) Corporation Ltd. & Ors. v. P.P Suresh and Ors. (2019 (9) SCC 710) allowed the appeals and held that the order dated 20.2.2002 has been replaced by order dated 7.8.2004 and therefore, the claim of abkari workers based on the previous government order was untenbale. 3. Ext.P1 Government order dated 7.8.2004 reads thus: Government as per order first read above, ordered that 25% of all daily wage employment vacancies arising in the Kerala State Beverages Corporation in future should stand reserved to be filled up by the abkari workers registered with the Kerala Abkari Workers Welfare Fund Board who were terminated from service due to arrack ban with effect from 1.1.1996. Though certain daily wage vacancies were reserved reserved for the exabkari workers, these vacancies could not be filled up, as a list of eligible workers was not made available to the KSBC. This issue was subjected to detailed discussion in the meeting held by the Chief Minister on 22.10.2003. It was therein decided to fix new criteria for the rehabilitation of abkari workers and to fill up the vacancies reserved for them in future based on the revised criteria. Government have examined the issue in detail and are pleased **WA NO. 720 OF 2018** **5** to order that 25% of all daily wage employment vacancies arising in the Kerala State Beverages Corporation should be earmarked for the dependent sons of arrack workers who had perished consequent on the loss of employment due to the ban on arrack in the State and if such claimants are more than the available number of vacancies, selection will be made from among them, subject to following conditions: (1) Only the dependent son who has not completed 38 years of age will be eligible. (2) The consent letter of the wife of the deceased and the FIR/Death Certificate also be submitted along with the application. A list of eligible abkari workers prepared on the basis of the above guideline shall be made available to the KSBC by the Chief Welfare Fund Inspector, the Kerala Abkari Workers Welfare Fund Board to fill up the vacancies. The order read as first paper above will stand modified to this extent. 4. Applications of the workers, who had already applied or after promulgation of the scheme, were processed by the Kerala Abkari Workers Welfare Fund Board and submitted to the Kerala State Beverages (Manufacturing and Marketing) Corporation Ltd. (BEVCO) in terms of the scheme ie., 25% of the vacancies were ordered to be kept reserved in the BEVCO. Certain other dependents of Abkari and arrack workers like the petitioners submitted application on different dates, which is tabulated herein below: **WA NO. 720 OF 2018** **6** |Sl.No.|Name|Date of Birth|Date of<br>Application|Date of death<br>of the<br>employee| |---|---|---|---|---| |1|Joju K.J|26/03/84|01/07/09|15/03/06| |2|Krishna Kumar K|06/05/87|06/08/05|04/04/97| |3|Sandeep A.M|25/05/87|26/12/03|13/03/00| |4|Antony C Johnson|18/05/66|31/05/12|02/06/00| |5|Shanil K.V|01/06/84|06/05/13|23/10/01| |6|Shalan S.K|25/05/80|Not known|23/11/01| |7|Gireesh|21/10/85|29/05/09|21/06/02| |8|Anil S|01/04/78|Not known|09/03/04| |9|Jayaprasad T|05/04/76|Not known|11/04/07| |0|P.P Sanooj|28/03/83|22/12/09|12/08/07| |11|Sreejith|01/10/83|25/09/09|09/01/08| |12|Manu S Nair|22/08/89|07/12/11|04/06/08| |13|Reghulal R|20/05/74|Not known|04/12/08| |14|Ravikanth|18/01/89|Not known|10/06/02| 5. Vide Ext.P5 dated 1.8.2013 considering various judgments of this Court in different matters, Government **WA NO. 720 OF 2018** **7** modified the order. In order to prevent the spate of applications, modified the scheme dated 7.8.2004 by terming it to be a one time employment scheme. In the meantime, the applicants who had submitted applications much later, as indicated above, to the Kerala Abkari Workers Welfare Fund Board, were forwarded to the BEVCO on 12.8.2013. 6. On noticing that there is already a modification in the original promulgated scheme, Government vide order dated 16.11.2016 cancelled the list of 75 persons. Petitioners, in 2018 staked the claim in this Court for issuance of directions to the respondents to consider the applications without laying challenge to the order dated 16.11.2016. 7. The stand of the BEVCO before the Single Bench was in tandem with the aforementioned facts with a further objection that the writ petition in the absence of any challenge to the order dated 16.11.2016 was not untenable. 8. Learned Single Bench vide impugned judgment considering all those facts rejected the claim of the appellants ie., petitioners 1, 5, 7 and 9-12 and granted the relief to 2, 3 **WA NO. 720 OF 2018** **8** and 14 on the premise that the said petitioners were minors at the time when the modification was caused and therefore they would not be hit by the Government order dated 1.8.2013, Ext.P5 but would be covered under the originally promulgated scheme dated 7.8.2004. 9. BEVCO assailed the judgment of the Single Bench qua the extension of benefit to the petitioners 2, 3 and 14 vide W.A No.1884 of 2018. 10. Division Bench of this Court modified the order of the Single Bench by relegating the petitioner Nos. 2, 3 and 14 to approach the Government with the details of their date of birth, the date of death of the abkari workers and also the date of their application in terms of the scheme and on submission of those documents, Government shall examine and take an appropriate decision, in accordance with law. The denial of the reliefs to other petitioners has led to filing of the intra court appeal. 11. Learned counsel appearing on behalf of the appellants, in support of the memorandum of appeal submitted that the modification of the scheme was caused on 1.8.2013 **WA NO. 720 OF 2018** **9** but the applications were submitted much before as evident from the table extracted above. At least said applicants/dependents could have been considered in terms of the scheme. 12. The act of the Government Ext.P5 is hit by doctrine akin to promissory estoppel as the tenor and mode of the scheme Ext.P1 do not restrict its applicability rather it was to be made applicable till the cessation of the list of dependants in view of the expression used 'in future'. There was no limitation for submission of the application for the cause of action is recurring and the benefit extended to other persons would result into dichotomous approach much less discrimination as envisaged under Article 14 of the Constitution of India and also deprivation of livelihood provided under Article 21 of the Constitution of India. 13. Learned counsel appearing for the BEVCO countered the arguments on the premise that in the absence of any challenge to the order dated 16.11.2016, R1(a) cancelling the list of 75 persons including that of the petitioners, appeal would not be maintainable. In fact the petitioners if at all were **WA NO. 720 OF 2018** **10** aggrieved could have assailed the said order without wastage of time but kept silent for almost two years and staked the claim of employment on the basis of the scheme, which was already modified. In case the request of the petitioners is accepted, there would be no end to claim on behalf of similarly situated persons and the process would continue for infinite period. 14. Counsel for the Kerala Abkari Workers Welfare Fund Board adopts the argument of the counsel for the BEVCO. 15. We have heard the learned counsel for the parties and appraised the paper book. Claim in the instant writ petition on behalf of the petitioners was as under: 1. Issue of writ of certiorari quashing the original of ExhibitP5: 2. Declare that the petitioners are entitled to be appointed as Abkari worker as against 25% of the daily wage employment vacancies earmarked for the dependent sons of Abkari workers in accordance with the scheme formulated by the Government: 3. issue a writ of Mandamus directing the respondents 1 and 2 to engage the petitioners on daily wage basis in the service of the 1[st] respondent as Abkari workers as against 25% of the daily wage employment vacancies earmarked for the dependent sons of Abkari workers in accordance with the scheme formulated by the Government. **WA NO. 720 OF 2018** **11** 16. No challenge has been laid to the order dated 16.11.2016. There was some force in the argument regarding the submission of the applications much before the Government order dated 1.8.2013 but in view of the cancellation of the list, their argument cannot be countenanced. The tabulated chart extracted above would reveal that applicants/appellants/petitioners/ were not diligent for making the claim in terms of the scheme much less no explanation has comeforth. Single Bench in our considered view has rightly rejected the claim of the petitioners. We do not find any illegality or perversity. Writ appeal is dismissed. Sd/- AMIT RAWAL JUDGE sab Sd/C.S. SUDHA JUDGE