Allowed

K.M.Ibrahim v. the Administrator

Kerala HC24 Sept 2019OP (CAT)/160/2019

Case brief

AI extract

What is this about?

The High Court set aside the Tribunal’s order which granted retrospective regularisation and beneficial pension scheme for an employee. The Court held that regularisation cannot be retrospective for pension purposes as it was based on a new appointment.

What did the court decide?

Impugned Tribunal order granting retrospective service and prior pension benefits was set aside and O.A.226/2011 dismissed; Op(CAT).No.160/2019 also dismissed.

K.M.Ibrahim Vs the Administrator — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941

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OP (CAT).No.364 OF 2013(Z)

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AGAINST THE ORDER DATED 19-06-2012 IN O.A.NO.226/2011 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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PETITIONERS/RESPONDENTS 1 & 2:

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1 THE ADMINISTRATOR, UT OF LAKSHADWEEP,KAVARATTI.

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2 THE COLLECTOR CUM DEVELOPMENT COMMISSIONER ADMINISTRATION OF UT OF LAKSHADWEEP.

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BY ADVS. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP

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RESPONDENT/APPLICANT:

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SRI.K.M.IBRAHIM S/O.MADHURAKOM MOHAMMED HAJI, KEERTHI MAHAL HOUSE,KADAMATH ISLAND, UT OF LAKSHADWEEP, NOW WORKING AS VILLAGE EXTENSION OFFICER, SUB DIVISIONAL OFFICER,KAVARATTI-682 555.

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R1 BY ADV. SRI.SIVADAS C. R1 BY ADV. SRI.ANIYANKUNJU VARGHESE R1 BY ADV. SRI.M.P.KRISHNAN NAIR R1 BY ADV. SRI.V.B.NARAYANAN R1 BY ADV. SMT.RAJESWARI KRISHNAN

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 20.09.2019, ALONG WITH OP (CAT).160/2019, THE COURT ON 24.09.2019 DELIVERED THE FOLLOWING:

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OP(CAT).Nos.364 of 2013 & 160 of 2019

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941

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OP (CAT).No.160 OF 2019

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AGAINST THE ORDER DATED 19-06-2012 IN O.A.NO.226/2011 AND ORDER DATED 29-10-2012 IN R.A.NO.50/2012 IN O.A.NO.226/2011 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONER/APPLICANT:

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K.M.IBRAHIM S/O. MADHURAKOM MOHAMMED HAJI, KEERTHI MAHAL HOUSE, KADAMATH ISLAND, U.T. OF LAKSHADWEEP, NOW WORKING AS VILLAGE EXTENSION OFFICER, SUB DIVISIONAL OFFICE, KAVARATTI - 682 555.

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BY ADVS. SRI.M.P.KRISHNAN NAIR SMT.RAJESWARI KRISHNAN SMT.SEEMA KRISHNAN SHRI.NANDAKUMAR K. SRI.JOSEPH THEKKEKURUVANAL

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RESPONDENTS/RESPONDENTS:

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1 THE ADMINISTRATOR UNION TERRITORY OF LAKSHADWEEP, KAVARATTI - 682 555.

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2 THE COLLECTOR-CUM-DEVELOPMENT COMMISSIONER ADMINISTRATION OF U.T. OF LAKSHADWEEP-682 555.

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R1 & R2 BY SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP.

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 20.09.2019, ALONG WITH OP (CAT).364/2013(Z), THE COURT ON 24.09.2019 DELIVERED THE FOLLOWING:

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OP(CAT).Nos.364 of 2013 & 160 of 2019

Judgment

Chitambaresh, J.

1.The order in O.A.No.226/2011 on the file of the Central Administrative Tribunal, Ernakulam Bench is challenged by the Administrator of the Union Territory of Lakshadweep in OP(CAT).No.364/2013. The very same order of the Tribunal as well as the order in R.A.No.50/2012 is challenged by the applicant in OP(CAT).No.160/2019 and both the original petitions are being disposed of together.

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2.The applicant who was appointed as a Village Extension Officer on ad hoc basis on 18.2.1988 was relieved from service on 29.11.1999 as the regular incumbent to the post who was on deputation was repatriated. The applicant was the junior most Village Extension Officer at that time and had also not acquired the qualification of passing the Village Extension Officer Training. The relieving of the applicant from service was unsuccessfully challenged in O.A.No.1316/1999 before the Tribunal as well as in O.P.No.9998/2000 in this Court. The applicant completed the Village Extension Officer Training course on 20.1.2000 and

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OP(CAT).Nos.364 of 2013 & 160 of 2019

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sought for regularisation in service on the ground that few others were granted the benefit. The matter finally came up before this Court in WP(C).No.33832/2005 after the applicant had moved the Tribunal in O.A.Nos.65/2001, 333/2001 and 449/2005. The operative part of the judgment dated 15.10.2009 in WP(C).No.33832/2005 on the file of this Court is extracted below:

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“True it is more than 10 years since he was terminated from service. But the hard fact remains that he worked for the Administration for 10 years, he has acquired qualification, there are vacancies available and the last 10 years he has been either before the Administration or the Tribunal or this Court. Therefore to meet the ends of justice, petitioner who is at the age of 46 should be considered for regular appointment since he has acquired test qualification. In the above circumstance we dispose the writ petition as follows:

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There will be a direction to the Collector-cumDevelopment Commissioner, Administration of the Union Territory of Lakshadweep (second respondent), to consider the case of the writ petitioner for appointment as Village Extension Officer in any of the existing or next arising vacancy, in the light of the observations in this judgment.”

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The applicant was accordingly appointed as Village Extension Officer by order dated 12.1.2010 on temporary basis with a rider

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OP(CAT).Nos.364 of 2013 & 160 of 2019

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that he will be on probation from the date of joining in the post for two years.

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3.The probation was declared and the applicant continues in the post of Village Extension Officer to whom the provisions of the Defined Benefit Pension and G.P.F. would not be applicable being a recent appointee. Only the contributory pension scheme which came into effect with effect from 1.1.2004 would be applicable to the applicant who was appointed on 12.1.2010 regularly. Nevertheless the applicant moved the Tribunal again in O.A.No.226/2011 to get his services regularised with effect from 18.2.1988 which was the initial date of appointment. The Tribunal though disallowed regularisation has held that the ad hoc service put in by the applicant would be treated as qualifying service for pension. The Tribunal has also held that the applicant would be entitled to the benefit of the Pension Rules which was in vogue earlier and not the contributory pension scheme. An application for review filed by the applicant was rejected by the Tribunal and the orders passed in O.A.No.226/2011 and R.A.No.50/2012 are hence impugned in these original petitions.

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OP(CAT).Nos.364 of 2013 & 160 of 2019

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4.The applicant who was appointed on ad hoc basis was relieved from service on the ground that there was no vacancy since the permanent incumbent to the post on deputation was repatriated. The applicant was also not regularised in service as he had admittedly not then acquired the requisite qualification of passing the Village Extension Officer Training. The order of appointment of the applicant on regular basis was pursuant to the judgment in WP(C).No.33832/2005 and he was on probation for an initial period of two years. The appointment of the applicant cannot be given retrospective effect from 18.2.1988 even for counting the qualifying service for pension as has been held by the Tribunal. The verdict in the earlier litigations on the relieving from service of the applicant and for reinstatement in service or regularisation certainly operate as res judicata for the Tribunal. The applicant can be deemed to be on the permanent rolls only from 12.1.2010 in which case only the contributory pension scheme which came into effect on 1.1.2004 applies. The Tribunal grossly erred in allowing the original petition in part by directing that the ad hoc services of the applicant would be counted for qualifying service for pension. The Tribunal also committed an error in holding that the applicant would be entitled to the benefit of the Pension Rules

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OP(CAT).Nos.364 of 2013 & 160 of 2019

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earlier in vogue as if the applicant was in service even before. The impugned order of the Tribunal granting relief under such circumstances is hereby set aside and O.A.No.226/2011 and R.A.No.50/2012 filed by the applicant are dismissed.

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OP(CAT)No.364/2013 is allowed and OP(CAT).No.160/2019 is dismissed. No costs.

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Sd/V. CHITAMBARESH, JUDGE

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Sd/ASHOK MENON, JUDGE

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Sha/230919

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OP(CAT).Nos.364 of 2013 & 160 of 2019

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APPENDIX OF OP (CAT) 364/2013

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PETITIONERS' EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 12.1.2010 APPOINTING THE RESPONDENT AS VILLAGE EXTENSION OFFICER.

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EXHIBIT P2 A TRUE COPY OF THE O.M.F.NO.1(7)(2)/2003/TA/11 DATED 7.1.2004 ISSUED BY THE MINISTRY OF FINANCE, GOVERNMENT OF INDIA.

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EXHIBIT P3 A TRUE COPY OF THE NOTIFICATION DATED 22.12.2003.

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EXHIBIT P4 A TRUE COPY OF THE O.A.NO.226/2011 FILED BY THE RESPONDENT ON 4.3.2011.

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ANNEXURE A1: A TRUE COPY OF THE REPRESENTATION DATED 8.11.99 OF THE PETITIONER.

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ANNEXURE A2: A TRUE COPY OF THE JUDGMENT DATED 15.12.2000 IN O.P.NO.9998/2000.

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ANNEXURE A3: A TRUE COPY OF THE ORDER DATED 17.2.2001 IN O.P.NO.65 OF 2001.

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ANNEXURE A4: A TRUE COPY OF THE ORDER F.NO.2/2/93-SERVICE DATED 23.2.2001.

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ANNEXURE A5: A TRUE COPY OF THE ORDER DATED 25.7.2001 IN O.A.NO.1356/00 AND O.A.NO.5/2001.

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ANNEXURE A6: A TRUE COPY OF THE REPRESENTATION DATED 19.3.2005 SUBMITTED BY THE APPLICANT.

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ANNEXURE A7: A TRUE COPY OF THE REPRESENTATION DATED 28.5.2010 SUBMITTED BY THE APPLICANT.

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ANNEXURE A8: A TRUE COPY OF THE COVERING LETTER F.NO.1/4/2010-SDO(KVT)(1)DATED 28.5.2010.

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ANNEXURE A9: A TRUE COPY OF THE REMINDER DATED 12.7.2010 SUBMITTED BY THE APPLICANT.

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ANNEXURE A10: A TRUE COPY OF THE ORDER F.NO.18/16/88-ESTT.(POL.)2629 DATED 30TH JUNE 2007.

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OP(CAT).Nos.364 of 2013 & 160 of 2019

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ANNEXURE A11: A TRUE EXTRACT OF THE ORDER F.NO.9/16/2006/SJEC ISSUED BY THE LAKSHADWEEP ADMINISTRATION.

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EXHIBIT P5 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS ON 3.10.2011.

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ANNEXURE R1(A): A TRUE COPY OF THE ORDER F.NO.2/2/92-SERVICES DATED 29TH NOVEMBER 1999.

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ANNEXURE R1(B): A TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL IN O.ANO.1316/1999 DATED 20.3.2000.

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ANNEXURE R1(C): A TRUE COPY OF THE ORDER PASSED BY THE HON'BLE TRIBUNAL IN O.A.NO.449/2005 DATED 24.11.2005.

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ANNEXURE R1(D): A TRUE COPY OF THE JUDGMENT PASSED BY THE HON'BLE HIGH COURT OF KERALA IN WPC.NO.33832/2005 DATED 15.10.2009.

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EXHIBIT P6 A TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT.

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ANNEXURE A12: A TRUE COPY OF THE OFFICE ORDER DATED 26.5.93.

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ANNEXURE A13: A TRUE COPY OF THE LETTER DATED 17.12.1999.

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ANNEXURE A14: A TRUE COPY OF THE CERTIFICATE ISSUED BY THE COMMISSIONER, RURAL DEVELOPMENT DEPARTMENT.

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ANNEXURE A15: A TRUE COPY OF THE ORDER F.NO.2/8/86-SERVICES(4) DATED 15.11.87.

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ANNEXURE A16: A TRUE COPY OF THE ORDER F.NO.2/8/86-SERVICES(1) DATED 13.2.88.

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ANNEXURE A17: A TRUE COPY OF THE RECRUITMENT RULES.

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ANNEXURE A18: A TRUE COPY OF THE REPRESENTATION DATED 7.6.2000.

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EXHIBIT P7 A TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL IN O.A.NO.226/2011 DATED 19.6.2012.

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OP(CAT).Nos.364 of 2013 & 160 of 2019

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EXHIBIT P8 A TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL IN R.A.NO.50/2012 IN O.A.NO.226/2011.

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RESPONDENT'S EXHIBITS: NIL.

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APPENDIX OF OP (CAT) 160/2019

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OP(CAT).Nos.364 of 2013 & 160 of 2019

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE O.A NO.226/2011 WITH ANNEXURES FILED BEFORE THE LEARNED CAT ERNAKULAM BENCH.
EXHIBIT P1(A1)	TRUE COPY OF THE REPRESENTATION DATED 8.11.99 SUBMITTED BY THE PETITIONER.
EXHIBIT P1(A2)	TRUE COPY OF THE JUDGMENT DATED 15.12.2000 IN OP.NO.9998/2000 OF THE HON'BLE HIGH COURT.
EXHIBIT P1(A3)	TRUE COPY OF THE ORDER DT.17.1.01 IN OA.NO.65/01 OF THE CAT ERNAKULAM BENCH.
EXHIBIT P1(A4)	TRUE COPY OF THE ORDER F.NO.2/2/93-SERVICE DATED 23.2.01 OF THE LAKSHADWEEP ADMINISTRATION.
EXHIBIT P1(A5)	TRUE COPY OF THE ORDER DATED 25.7.2001 IN OA.NO.1356/00 AND OA.NO.5/01 OF THE CAT ERNAKULAM BENCH.
EXHIBIT P1(A6)	TRUE COPY OF THE REPRESENTATION DATED 19.3.2005 SUBMITTED BY THE PETITIONER TO THE RESPONDENT.
EXHIBIT P1(A7)	TRUE COPY OF THE REPRESENTATION DATED 28.5.2010 SUBMITTED BY THE PETITIONER TO THE RESPONDENT.
EXHIBIT P1(A8)	TRUE COPY OF THE COVERING LETTER SDO/KVT(2) DATED 28.5.2010 BY THE SUB DIVISIONAL OFFICE, KAVARATTI TO A7.
EXHIBIT P1(A9)	TRUE COPY OF THE REMINDER DATED 12.7.2010 SUBMITTED BY THE PETITIONER TO THE RESPONDENT.
EXHIBIT P1(A10)	TRUE COPY OF THE ORDER F.NO.18/16/88- ESTT(POL) 2629 DATED 30.6.2007.
EXHIBIT P1(A11)	TRUE EXTRACT OF THE ORDER F.NO.9/16/2006/SJEC DATED NIL ISSUED BY THE LAKSHADWEEP ADMINISTRATION.
EXHIBIT P2	TRUE COPY OF THE ORDER DATED 19.6.2012 IN OA NO.226/2011 OF THE LEARNED TRIBUNAL.

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OP(CAT).Nos.364 of 2013 & 160 of 2019

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EXHIBIT P3 TRUE COPY OF THE REVIEW APPLICATION NO.50/2012 FILED BY THE APPLICANT IN OA NO.226/2011. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 29.10.12 IN RA NO.50/12 IN OA NO.226/11. EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN OP(CAT) NO.364/13 FILED BY THE RESPONDENTS HEREIN AGAINST THE ORDER IN OA.226/11. EXHIBIT P6 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN O.A.NO.226/11. EXHIBIT P6(R1(A)) TRUE COPY OF THE ORDER F.NO.2/2/92-SERVICES DATED 29.11.1999. EXHIBIT P6(R1(B)) TRUE COPY OF THE ORDER PASSED BY THE LEARNED TRIBUNAL IN OA1316/99 DATED 20.3.2000. EXHIBIT P6(R1(C)) TRUE COPY OF THE ORDER DATED 24.11.2005 IN OA NO.449/05 OF THE LEARNED TRIBUNAL. EXHIBIT P6(R1(D)) TRUE COPY OF THE JUDGMENT DATED 15.10.2009 IN WPC.NO.33832/05 OF THIS HON'BLE COURT. EXHIBIT P7 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN OA NO.226/11. EXHIBIT P7(A12) TRUE COPY OF THE OFFICE ORDER DATED 26.5.93 OF THE RESPONDENT. EXHIBIT P7(A13) TRUE COPY OF THE LETTER DATED 17.12.99 OF THE ADDITIONAL DEVELOPMENT COMMISSIONER TO THE RESPONDENT. EXHIBIT P7(A14) TRUE COPY OF THE CERTIFICATE ISSUED BY THE COMMISSIONER, RURAL DEVELOPMENT DEPARTMENT. EXHIBIT P7(A15) TRUE COPY OF THE ORDER F.NO.2/8/86SERVICES(4) DATED 15.11.87. EXHIBIT P7(A16) TRUE COPY OF THE ORDER F.NO.2/8/86SERVICES(1) DATED 13.2.88. EXHIBIT P7(A17) TRUE COPY OF THE RECRUITMENT RULES. EXHIBIT P7(A18) TRUE COPY OF THE REPRESENTATION DATED

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OP(CAT).Nos.364 of 2013 & 160 of 2019

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7.6.2000 SUBMITTED BY THE PETITIONER.

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EXHIBIT P8	TRUE COPY OF THE ADDITIONAL REJOINDER FILED BY THE PETITIONER IN OA 226/11.
EXHIBIT P8(A19)	TRUE COPY OF THE PROCEEDINGS DATED 17.5.83 OF THE 2ND RESPONDENT.
EXHIBIT P8(A20)	TRUE COPY OF THE PROCEEDINGS DATED 15.12.84 OF THE 2ND RESPONDENT.
EXHIBIT P8(A21)	TRUE COPY OF THE PROCEEDINGS DATED 31.1.84 OF THE 2ND RESPONDENT.
EXHIBIT P8(A22)	TRUE COPY OF THE ORDER F.NO.9/16/2006- SWTA/34 DATED 2.7.2007.
EXHIBIT P8(A23)	TRUE COPY OF THE PROCEEDINGS OF THE DIRECTOR OF SOCIAL WELFARE DATED 26.10.93.
EXHIBIT P8(A24)	TRUE COPY OF THE ORDER F.NO.5/20/96-SWC(4) DATED 16.12.96 OF THE DIRECTOR, SOCIAL WELFARE.
EXHIBIT P8(A25)	TRUE COPY OF THE ORDER F.NO.5/20/96-SWC(2) DATED 16.12.96 OF THE DIRECTOR OF SOCIAL WELFARE.
EXHIBIT P8(A26)	TRUE COPY OF THE ORDER DATED 30.3.94 OF THE DIRECTOR OF SOCIAL WELFARE.
EXHIBIT P8(A27)	TRUE COPY OF THE OFFICE ORDER DATED 2.7.2007 OF THE DIRECTOR OF SE & TA.
EXHIBIT P8(A28)	TRUE COPY OF THE MINUTES OF THE SCREENING COMMITTEE DATED 7.6.2006.
EXHIBIT P9	TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS.
EXHIBIT P10	TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER IN OA NO.226/11.
EXHIBIT P11	TRUE COPY OF THE SECOND ADDITIONAL REJOINDER FILED BY THE PETITIONER.
EXHIBIT P12	TRUE COPY OF THE STATEMENT FILED BY THE COUNSEL FOR THE PETITIONER IN OA NO.226/2011.

K.M.Ibrahim v. the Administrator

Case brief

What is this about?

What did the court decide?

K.M.Ibrahim v. the Administrator

Case brief

What is this about?

What did the court decide?

What the court decided

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