Dismissed

P.O.Boben v. Rajasekharan V.M.

Kerala HC5 Feb 2020OP(KAT)/40/2018

Case brief

AI extract

What is this about?

Promotions as Polytechnic Heads of Department without the adopted AICTE qualifications were held illegal despite unamended Special Rules. The court dismissed the petitions, directed conditional promotion of the eligible applicant within two weeks, barred recovery from the two individual petitioners and directed their consideration for available posts after acquiring qualifications.

What did the court decide?

Applicant's promotion within two weeks, subject to eligibility; no excess-pay recovery from individual petitioners; consideration for available posts after their acquisition of qualifications.

P.O.Boben Vs Rajasekharan V.M. — Service and Employment | Kerala HC (2020)

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941

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OP(KAT).No.40 OF 2018(Z)

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OA 257/2016 DATED 10-11-2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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RA (EKM) 23/2017 DATED 11-01-2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONER/S:

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P.O.BOBEN S/O UNNOONNY VAIDHYAN, AGED 54 YEARS,HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING,GOVERNMENT POLYTECHNIC COLLEGE, ADOOR,PATHANAMTHITTA DISTRICT,PIN.691551,RESIDING AT PLAVILA VAYALIL MARAVOOR,EAST KALLADA PO, KOLLAM DISTRICT, PIN.691502, MOBILE-9447865995.

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BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.SAJU JOHN SMT.N.SANTHA SRI.V.VARGHESE

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RESPONDENT/S:

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1 RAJASEKHARAN V.M. S/O T.E BALAKRISHNA PANICKER, AGED 52 YEARS,WORKSHOP SUPERINTENDENT, GOVERNMENT POLYTECHNIC COLLEGE,KALAMASSERY, ERNAKULAM DISTRICT, PIN.686104,RESIDING AT THECKINEYATHU

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O.P.KAT Nos.40,70 & 216 of 2018

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BHAVAN, KOOVAPPADY, ERNAKULAM,KERALA-683544, MOBILE-9447522985.

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2 THE PRINCIPAL SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT, GOVERNMENTSECRETARIAT, THIRUVANATHAPURAM, KERALA-695001,.

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3 THE DIRECTOR OF TECHNICAL EDUCATION DIRECTORATE OF TECHNICAL EDUCATION,PADMAVILASAM ROAD, EAST FORT, THIRUVANANTHAPURAM, KERALA-695023.

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4 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION REPRESENTED BY ITS MEMBER SECRETARY,7TH FLOOR, CHANDERLOK BUILDING, JAN PATH,NEW DELHI. PIN.-110001.

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5 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY,SECRETARIAT, THIRUVANANTHAPURAM.695001.

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6 P.S BASHEER HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING,GOVT. POLYTECHNIC COLLEGE, PERIA PO, KASARGOD, KERALA-671316

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7 A.V PRAVEEN KUMAR HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING,GOVT. POLYTECHNIC COLLEGE, MATTANNOOR, KANNUR, KERALA-670702.

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8 K.N RAGEENDRAN NAIR HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING,GOVT. POLYTECHNIC COLLEGE, MATTANNOOR, KANNNUR,KERALA-670702

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9 C.K SAJEEVAN HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING,GOVT. POLYTECHNIC COLLEGE,

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O.P.KAT Nos.40,70 & 216 of 2018

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PERINTHALMANNA,ANGADIPURAM PO, MALAPPURAMM KERALA-679321.

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10 B .SREEKUMAR

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HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING,GOVT. POLYTECHNIC COLLEGE, THOTTADA PO, KANNUR,KERALA-670007, NOW WORKING IN GOVERNMENT POLYTECHNICCOLLEGE, KALAMASSERY.PIN.

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11 S. RAJEEV HEAD OF DEPARTMENT IN FOOD AND PAPER TECHNOLOGY,GOVT. POLYTECHNIC COLLEGE, THOTTADA PO, KANNURKERALA-670007.

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12 JACOB ABRAHAM HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING,GOVT.POLYTECHNIC COLLEGE, WEST HILL PO, KOZHIKODE, KERALA-673005.

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R1 BY ADV. SRI.P.M.JOSEPH R7 BY ADV. SMT.ASHA BABU R10 BY ADV. SRI.V.MADHUSUDHANAN R12 BY ADV. SMT.GIRIJA.L.

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OTHER PRESENT:

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SR.GP SRI.P.N.SANTHOSH

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 05-02-2020, ALONG WITH OP(KAT).70/2018(Z), OP(KAT).216/2018, THE COURT ON 05-02-2020 DELIVERED THE FOLLOWING:

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O.P.KAT Nos.40,70 & 216 of 2018

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941

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OP(KAT).No.70 OF 2018

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O.A.(EKM) 257/2016 DATED 10-11-2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONER/S:

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JACOB ABRAHAM

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HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING, GOVT. POLYTECHNIC COLLEGE, WEST HILL P.O., KOZHIKODE, KERALA-673005, RESIDING AT KUZHIVELIL PUTHEN VEEDU, THALACHIRA P.O., KOTTARAKARA, KOLLAM-691538. BY ADVS.

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SRI.N.RADHAKRISHNAN SMT.GIRIJA L.

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RESPONDENT/S:

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1 RAJASEKHARAN.V.M S/O. T. E. BALAKRISHNA PANICKER, AGED 52 YEARS, WORKSHOP SUPERINTENDENT, GOVERNMENT POLYTECHNIC COLLEGE, KALAMASSERY, ERNAKULAM DISTRICT, PIN-683104, RESIDING AT THECKINEYATHU BHAVAN, KOOVAPPADY P.O., ERNAKULAM, KERALA-683544.

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2 THE PRINCIPAL SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA695001.

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O.P.KAT Nos.40,70 & 216 of 2018

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3 THE DIRECTOR OF TECHNICAL EDUCATION DIRECTORATE OF TECHNICAL EDUCATION, PADMAVILASAM ROAD, EAST FORT, THIRUVANANTHAPURAM, KERALA-695023.

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4 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION REPRESENTED BY ITS MEMBER SECRETARY, 7TH FLOOR, CHANDERLOK BUILDING, JAN PATH, NEW DELHI, PIN-110001.

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5 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, ERALA-695001.

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6 P. O. BOBEN S/O. UNNOONNY VAIDHYAN, AGED 54 YEARS, HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING, GOVERNMENT POLYTECHNIC COLLEGE, ADOOR, PATHANAMTHITTA DISTRICT, PIN-691551, RESIDING AT PLAVILA VAYALIL, MARAVOOR, EAST KALLADA P.O., KOLLAM DISTRICT, PIN-691502, MOB9447865995.

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7 P. S. BASHEER HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING, GOVT. POLYTECHNIC COLLEGE, PERIA P.O., KASARGOD, KERALA-671316.

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8 A. V. PRAVEEN KUMAR HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING, GOVT. POLYTECHNIC COLLEGE, CHELAKKARA, KERALA-680586.

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9 K. M. RAVEENDRAN NAIR HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING,GOVT. POLYTECHNIC COLLEGE, MATTANNOOR, KANNUR, KERALA-670702.

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10 C. K. SAJEEVAN HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING,GOVT. POLYTECHNIC COLLEGE,

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O.P.KAT Nos.40,70 & 216 of 2018

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PERINTHALMANNA, ANGADIPURAM P.O., MALAPPURAM, KERALA-679321.

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11 B. SREEKUMAR HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING,GOVT. POLYTECHNIC COLLEGE, THOTTADA P.O., KANNUR, KERALA-670007.

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12 S. RAJEEV HEAD OF DEPARTMENT IN FOOD AND PAPER TECHNOLOGY, GOVT. POLYTECHNIC COLLEGE, THOTTADA P.O., KANNUR,KERALA-670007.

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R1 BY ADV. SRI.P.M.JOSEPH R1 BY ADV. SRI.R.S.HARI KUMAR

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 05-02-2020, ALONG WITH OP(KAT).40/2018(Z), OP(KAT).216/2018, THE COURT ON 05-022020 DELIVERED THE FOLLOWING:

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O.P.KAT Nos.40,70 & 216 of 2018

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941

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OP(KAT).No.216 OF 2018

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O.A.(EKM) 257/2016 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONER/S:

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1 STATE OF KERALA HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2 THE DIRECTOR OF TECHNICAL EDUCATION DIRECTORATE OF TECHNICAL EDUCATION, PADMAVILASAM ROAD, EAST FORT, THIRUVANANTHAPURAM.

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3 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.

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BY GOVERNMENT PLEADER SR.G.P.SRI.P.N.SANTHOSH

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RESPONDENT/S:

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1 RAJASEKHARAN V.M

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S/O.T.E.BALAKRISHNAN PANICKER, WORKSHOP SUPERINTENDENT, GOVERNMENT POLYTECHNIC COLLEGE, KALAMASSERY, ERNAKULAM DISTRICT, R/AT THECKINEYATHU BHAVAN, KOOVAPPADY, P.O.ERNAKULAM, PIN-683544.

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O.P.KAT Nos.40,70 & 216 of 2018

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2 THE MEMBER SECRETARY ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, 7TH FLOOR, CHANDRERLOK BUILDING, JAN PATH, NEW DELHI, PIN-110001.

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3 MR.P.O.BOBEN HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING, GOVERNMENT POLYTECHNIC COLLEGE, ADOOR, PATHANAMTHITTA DISTRICT, KERALA, PIN-691523.

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4 MR.P.S.BASHEER HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING, GOVERNMENT POLYTECHNIC COLLEGE, PERIA, P.O.KASARAGOD, PIN-671316.

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5 MR.A.V.PRAVEEN KUMAR HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING, GOVERNMENT POLYTECHNIC COLLEGE, CHELAKKARA, THRISSUR-680586.

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6 MR.K.N.RAVEENDRAN NAIR HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING, GOVERNMENT POLYTECHNIC COLLEGE, MATTANNOOR, KANNUR-670702.

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7 MR.C.K.SAJEEVAN HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING, GOVERNMENT POLYTECHNIC COLLEGE, PERINTHALMANNA, ANGADIPURAM P.O., MALAPPURAM, PIN-679321.

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8 MR.B.SREEKUMAR

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HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING, GOVERNMENT POLYTECHNIC COLLEGE, THOTTADA P.O., KANNUR-670007.

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9 MR.S.RAJEEV HEAD OF DEPARTMENT IN FOOD AND PAPER TECHNOLOGY, GOVERNMENT POLYTECHNIC COLLEGE, THOTTADA P.O., KANNUR-670007.

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O.P.KAT Nos.40,70 & 216 of 2018

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10 MR.JACOB ABRAHAM HEAD OF DEPARTMENT IN MECHANICAL ENGINEERING, GOVERNMENT POLYTECHNIC COLLEGE, WEST HILL P.O., KOZHIKODE-673005.

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R1 BY ADV. SRI.P.M.JOSEPH R10 BY ADV. SRI.N.RADHAKRISHNAN R10 BY ADV. SMT.GIRIJA L.

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 05-02-2020, ALONG WITH OP(KAT).40/2018(Z), OP(KAT).70/2018(Z), THE COURT ON 0502-2020 DELIVERED THE FOLLOWING:

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O.P.KAT Nos.40,70 & 216 of 2018

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JUDGMENT

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Dated this the 5^th day of February, 2020.

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V.G.ARUN, J.

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The original petitions are filed by the respondents in O.A.(EKM) No. 257 of 2016 filed by the 1^st respondent in all these cases. O.P.(KAT) No.216 of 2018 is filed by the State of Kerala and its officials, who were respondents 1, 2 and 4 in the original application. O.P.(KAT) No. 40 of 2018 is filed by the 5^th respondent and O.P.(KAT) No.70 of 2018 by the 12^th respondent. For the sake of convenience, the parties and the exhibits are described hereunder as referred to in the original application.

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The original application was filed challenging Annexures A2 and A3 Government orders by which respondents 5 to 12 were promoted as Heads of Department of Mechanical Engineering in different Government

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O.P.KAT Nos.40,70 & 216 of 2018

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Polytechnic Colleges under the Directorate of Technical Education. The challenge was on the premise that respondents 5 to 12 were not qualified to hold the post of Heads of Department, since they did not have the qualification prescribed by the AICTE and adopted by the Government with effect from 1.7.2013 as per Annexure A1 order. As per Annexure A1, the Government decided to implement the AICTE Scheme, strictly following the norms prescribed by the AICTE. The qualification and experience prescribed under Annexure A1 for the post of Head of Department is as follows:-

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“Bachelors and Masters Degree of appropriate branch in Engineering/Technology with First Class or equivalent either at Bachelor's or Master's level. Minimum of ten years relevant experience in teaching/research/industry. OR

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Bachelor's degree and Master's degree of appropriate branch in Engineering/Technology with First Class or equivalent either at Bachelor's or Master's level and Ph.D or equivalent, in appropriate discipline in Engineering/Technology. Minimum of five years relevant

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O.P.KAT Nos.40,70 & 216 of 2018

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experience in teaching/research/industry.”

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Annexures A2 and A3 orders of promotion having been issued on 24.06.2014 and 03.09.2015; after the issuance of Annexure A1 order, it was contended that the promotions were illegal. In support of the contention, reliance was placed on the decision of the Full Bench in Radhakrishna

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Pillai. D (Dr.) v Travancore Devaswom Board and others [2016 (2) KLT 245] . Therein, the Full Bench had held that in the light of adoption of the UGC Scheme by the Government, the same will prevail, even in the absence of consequential amendments to the University Act.

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With regard to the credentials of the applicant, it was submitted that the applicant had entered service on 15.12.1997 and has been working as Workshop Superintendent, in the cadre of Lecturer in Mechanical

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O.P.KAT Nos.40,70 & 216 of 2018

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Engineering from 5.01.2004 onwards. The applicant has passed B.Tech Degree in Mechanical Engineering with first class and honors from the University of Calicut and M.Tech Degree with first class and distinction from the Cochin University of Science and Technology.

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The State resisted the prayers in the original application and took the stand that promotions under challenge were made strictly in accordance with the Special Rules in force and that, the process of amending the Special Rules in tune with the AICTE norms was on the anvil. It was contended that the qualifications prescribed under the Kerala Technical Education Special Rules ('the Special Rules' for short), for promotion to the post of Head of Section in Engineering/Technology is:

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“ (i) Bachelor's Degree in appropriate branch of Engineering/Technology with not less than 60% marks in the final qualifying examination or in aggregate from a recognised

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O.P.KAT Nos.40,70 & 216 of 2018

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University after undergoing regular course of study (ii) Five years of experience as Lecturer in Polytechnic College under the Department of Technical Education, Government of Kerala. “

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It was submitted that respondents 5 to 12 had the qualifications prescribed under the Special Rules and were eligible for promotion, as long as the qualifications prescribed under Annexure A1 was not incorporated in the Special Rules. It was contended that the AICTE Scheme was implemented in Government and aided Polytechnic Colleges with effect from 1.07.2013 and from then onwards the Rules, Orders, Regulations, Guidelines etc, as laid down by the AICTE from time to time shall be applicable and that all recruitments to the cadres of Lecturer, Head of Department and Principal in the subjects covered by the AICTE Scheme shall, from the date of the order, be deemed to be under the AICTE Scheme. It was pointed out that while considering

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O.P.KAT Nos.40,70 & 216 of 2018

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promotions to the post of Head of Department in Civil Engineering, the Ad hoc Departmental Promotion Committee (Higher), which had met on 03.10.2016, had, on noticing the qualifications prescribed by the AICTE and the judgments of the Honourable Supreme Court on the applicability of the prescription of qualifications by the AICTE, emphasised the need for selecting candidates possessing those qualifications,

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for upholding the standards of Technical Education in the State.

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The party respondents contended that the

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applicant was one of the junior most Lecturers in the Department of Mechanical Engineering. The applicant was promoted as Lecturer on 30.12.2003 and had joined only on 05.01.2004, whereas respondents 6, 7 and 9 to 12 were promoted as Lecturers on 18.02.2000. It was submitted that in the gradation list of Principals, Heads of Section, Lecturers

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O.P.KAT Nos.40,70 & 216 of 2018

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of Government Polytechnic Colleges and equated category appointed during the period from 1.1.1999 to 31.12.2001 and published as per order dated 06.06.2006, the applicant's name did not find a place as he had joined as Lecturer only on 05.01.2004. It was hence contended that the applicant cannot claim seniority over the respondents.

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Referring to Paragraph II of Annexure A1, it was submitted that the Scheme is applicable only to those Lecturers, Heads of Department and Principals, in Engineering subjects, in Government and aided Polytechnic Colleges and the teaching faculties in non engineering subjects in aided Polytechnic Colleges, who are fully qualified as per the AICTE norms and that the others who are qualified as per the Special Rules, but do not possess the qualification prescribed by the AICTE, will continue in the same scales of pay. It was therefore contended that the

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O.P.KAT Nos.40,70 & 216 of 2018

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revised pay scales, service conditions, career advancement Schemes and other guidelines are applicable only for fresh appointees to the designated post and not for existing incumbents working in those positions.

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The Tribunal, relying on Annexure A11 judgment of the Full Bench in Radhakrishna Pillai and the Tribunal's own order in O.A.No.2686 of 2016, held that persons who are fully qualified as per the AICTE norms alone were entitled to be promoted and persons without the prescribed qualifications cannot continue to occupy the posts to which they were promoted after Annexure A1 had come into effect. It was therefore held that the promotions effected to the post of Heads of Department as per Annexures A2 and A3 are illegal. The original application was thus allowed, directing the first respondent to fill up the post of Heads of Department in Mechanical Engineering after evaluating the

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O.P.KAT Nos.40,70 & 216 of 2018

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qualifications, seniority and the eligibility as per Annexure A1, within a period of two months. It was made clear that since respondents 5 to 12 were working as Heads of Department based on Annexures A2 and A3, there shall be no recovery of excess salary and allowances paid to them.

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Heard Sri.Peter Jose Christo and

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Sri.N.Radhakrishnan learned Counsel for the petitioners in O.P.KAT Nos.40 and 70 of 2018 and Sri.P.N.Santhosh, the learned Senior Government Pleader appearing for the State/petitioner in O.P.K.AT No.216 of 2018 and Sri.P.M.Joseph, learned Counsel for the

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respondent/applicant.

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The learned Counsel for the petitioners would contend that even after adoption of the AICTE Scheme by the Government, the promotions to various posts in Government Polytechnic Colleges will continue to be governed by the

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O.P.KAT Nos.40,70 & 216 of 2018

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Special Rules till the Special Rules are amended in tune with Annexure A1. According to the learned Counsel, Annexure A1 only states that the pay of Lecturers, Heads of Department and Principals in Polytechnic Colleges, with the qualification as prescribed under the AICTE Scheme, will be in accordance with the prescription under the Scheme and for others, who are qualified as per Special Rules but do not possess the qualification prescribed by the AICTE, the State scales of pay will continue to apply. It is therefore contended that the only adverse consequence of Anneuxre A1, as far as the petitioners are concerned, is that they will continue in the State scale of pay, whereas those with the prescribed qualifications are entitled for AICTE scale.

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The learned Counsel for the petitioner in O.P.KAT 40 of 2018 raised a further contention that the select list for promotion as Head of Department, Mechanical Engineering

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O.P.KAT Nos.40,70 & 216 of 2018

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was published in June 2013 and the petitioner was not promoted for want of vacancy till 14.01.2014. It is contended that the vacancy to which the petitioner was promoted having arisen on 14.1.2014, prior to the introduction of Annexure A1, the petitioner's promotion would be governed by the Special Rules. In support of this contention, the learned counsel placed reliance on the Full Bench decision of this Court in Varghese and others v. State . of Kerala and others [ILR 1981 (2) Ker. 285]

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The learned counsel for the applicant countered

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the contentions of the petitioners and submitted that in the light of the authoritative pronouncement of the Full Bench in Radhakrishna Pillai ' s case, the appointments made in contravention of the AICTE Scheme, as adopted by Annexure A1 is illegal. It is submitted that though Annexure A1 is dated 20.02.2014, it came into effect on 1.7.2013 and

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O.P.KAT Nos.40,70 & 216 of 2018

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therefore, the contention of the petitioner in O.P.KAT 40 of 2018 that the vacancy to which he was promoted had arisen prior to the issuance of Annexure A1 is factually incorrect. The learned counsel pressed into service the judgment of this Court in O.P.KAT 206 of 2017, wherein the impact of Annexure A1, while effecting promotion to the post of Principal in Government Polytechnic College was considered.

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As far as the contention of the petitioners that, till the Special Rules are amended in terms of Annexure A1, promotions can be effected based on the qualification prescribed in the Special Rules is liable to be rejected in view of the legal position succinctly laid down by the Full Bench in Radhakrishna Pillai 's case. Therein the issue was with regard to the applicability of the prescription of qualification for promotion to the post of Principals in Colleges affiliated to the Kerala and the Mahatma Gandhi Universities brought

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O.P.KAT Nos.40,70 & 216 of 2018

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about by the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Academic Staff in Universities

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And Colleges and Other Measures for the Maintenance of Standards in Higher Education, 2010 and accepted by the Government as per Government order dated 10.12.2010, with effect from 18.09.2010. The contention was that the prescriptions would not apply as long as corresponding amendments are not brought to the University Act. Rejecting the contention, the Full Bench, after elaborate consideration of the precedents, held as under:-

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“17. Therefore, irrespective of whether the University Acts enacted under Entry 25 of List III or the Statues framed thereunder are amended in line with the UGC Regulations or not, in view of its adoption by the State of Kerala with effect from 18.09.2010 as per Government order dated 10.12.2010, the Universities and affiliated Colleges in Kerala State are bound to comply with the UGC Regulations, 2010.”

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Yet another decision of relevance is that of the

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Honourable Supreme Court in Shaji T.L. and another v.

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O.P.KAT Nos.40,70 & 216 of 2018

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. Dr.P.G.Jairaj and others [Civil Appeal No.4503 of 2016]

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Though the issue therein was with respect to Rule 6A (1) introduced by the Kerala Technical Education Services (Amendment Rules), 2004, providing for exemption from qualification, the incidental question as to when exactly the prescription of qualification by the AICTE would come into operation was considered. Answering the question, the Apex Court held that as per Section 10 (1) (i) of the AICTE Act, it was for the AICTE to lay down the norms insofar as it related to prescription of qualifications for the teachers and other academic staff in technical institutions and that such prescription, even if made by way of norms, would come into operation instantaneously. The Apex Court refused to accept the submission that by virtue of Sections 23 and 24 of the AICTE Act, that a gazette notification is necessary for the norms prescribed by the AICTE to become enforceable

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O.P.KAT Nos.40,70 & 216 of 2018

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insofar as it related to the prescription of academic

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qualifications.

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The position of law having thus been made clear by the decisions of the Apex Court as well as the Full Bench of this Court, the contention that the promoted persons being qualified in terms of the prescription in the Special Rules, are entitled to continue in the promoted post of Head of Department in Mechanical Engineering and the contention that irrespective of Annexure A1, the qualifications prescribed under the Special Rules will continue to be in force till a suitable amendment is made to the Special Rules, are liable to be rejected. Even otherwise, the acceptance of such contention would lead to an anomalous situation of there being two streams of promotion, namely, from among persons having AICTE qualification and those without the prescribed qualification.

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O.P.KAT Nos.40,70 & 216 of 2018

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Further, the AICTE itself has, as per Annexure A7, clarified the position by stating that the revised qualification and experience will be required only for fresh appointees to the designated posts and will not be applicable for existing incumbents working in those positions, whereas, for further upward movement under CAS/promotion/appointment, the faculty should acquire higher qualification, if any, prescribed for the post.

¶184

In O.P.KAT 206 of 2017, the grievance of the petitioner was against rejection of his claim for promotion as Principal in Government and aided Polytechnic Colleges. Therein also, a contention was raised that adoption of the AICTE Scheme as per Annexure A1 Government order was with intent to grant higher pay scales to persons with higher qualifications and had nothing to do with promotions. Rejecting the contention, the Division Bench held as follows:-

¶185

O.P.KAT Nos.40,70 & 216 of 2018

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“7. The Scheme as such having been accepted by the Government as per Order dated 20.02.2014 with effect from 01.07.2013, the qualification stipulated for holding the post of Principal will govern the situation. Merely for the reason that the petitioner was enlisted in Annexure A1 at one point of time, by itself, is not a ground for the petitioner to contend anything contrary. He stands outside the purview of the Scheme accepted by the Government and he can't be promoted to the post of Principal without possessing the qualifications, even on a lower pay scale. We find absolutely no merit in the Original Petition.”

¶188

The qualification for promotion to the post of Head of Department as prescribed under Annexure A1 is effective from 1.07.2013 onwards. The promotion granted to persons, without the qualifications prescribed under Annexure A1 is hence illegal. The findings of the Tribunal in that regard are only to be affirmed.

¶189

In the result, the original petitions are dismissed. Considering the fact that the first respondent/applicant is due to retire on 31.03.2020, necessary order promoting him as Head of Department in the vacancy which would arise consequent to the reversion of the unqualified persons

¶190

O.P.KAT Nos.40,70 & 216 of 2018

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holding the post, shall be effected within two weeks of receipt of a copy of this judgment; if he is otherwise qualified and there is no impediment for promotion. It is made clear that there shall be no recovery of excess salary and allowances paid to the petitioners in O.P.KAT Nos.40 and 70 of 2018 during the period they worked as Heads of Department. It is an admitted fact that these petitioners are also now qualified and if there are posts available, after the acquisition of qualification by them, they shall also be considered duly to such posts. No order as to costs.

¶193

Sd/-

¶194

K.VINOD CHANDRAN JUDGE

Sd/-

JUDGE

Scl/5.02.2020

O.P.KAT Nos.40,70 & 216 of 2018

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APPENDIX OF OP(KAT) 40/2018

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PETITIONER'S/S EXHIBITS:

¶202

ANNEXURE A1 TRUE COPY OF THE G.O. (MS)NO.75/2014/FIN DATED THIRUVANANTHAPURAM DATED 20.2.2014. ANNEXURE A2 TRUE COPY OF THE G.O. (RT)NO.1317/2014/FIN/HEDN. DATED TVM 24.6.2014. ANNEXURE A3 TRUE COPY OF THE G.O. (RT)NO.2285/2015/H.EDN DATED TVM 3.9.2015. ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED 30.6.2014 FROM THE APPLICANT TO THE 1ST RESPONDENT. ANNEXURE A5 TRUE COPY OF THE REPRESENTATION DATED 5.1.2015 FROM THE APPLICANT TO THE 1ST RESPONDENT.

¶203

ANNEXURE A6 TRUE COPY OF THE RELEVANT PAGES OF THE APPROVAL PROCESS HAND BOOK OF AICTE.

¶204

ANNEXURE A7 TRUE COPY OF THE RELEVANT PAGES OF AICTE NOTIFICATION F.NO.27/RIFD/PAY SCALE/01/2013-14, NEW DELHI, DATED 4.1.2016.

¶205

ANNEXURE A8 TRUE COPY OF THE REPRESENTATION DATED 21.1.2016 TO THE 1ST RESPONDENT FROM THE APPLICANT.

¶206

ANNEXURE A9 TRUE COPY OF THE COVERING LETTER DATED 25.1.2016 FROM THE HEAD OF THE OFFICE ALONG WITH THE REPRESENTATION.

¶207

O.P.KAT Nos.40,70 & 216 of 2018

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ANNEXURE RA1	CERTIFIED COPY OF THE ORDER DATED 10.11.2017 IN O.A.(EKM)257 OF 2016 OF THIS HON'BLE TRIBUNAL.
ANNEXURE RA2	TRUE COPY OF THE SELECT LIST PUBLISHED AS PER G.O.(P)NO.234/2013/H.EDN. DATED 4.6.2013.
ANNEXURE RA3	TRUE COPY OF THE RELEVANT EXTRACT OF FINAL SENIORITY LIST FOR THE POST OF LECTURER, PUBLISHED AS PER ORDER NO.EG1-20579/02 DATED 6.6.2006 OF THE DIRECTOR OF TECHNICAL EDUCATION.
ANNEXURE RA4	TRUE COPY OF THE LETTER NO.RTI/12898/2016 DATED 4.7.2016 OF THE STATE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE DIRECTOR OF TECHNICAL EDUCATION.
ANNEXURE RA5	TRUE COPY OF THE LETTER NO.DP6/21123/14/DTE DATED 21.4.2017 OF SENIOR JOINT DIRECTOR, OFFICE OF THE 3RD RESPONDENT.
ANNEXURE RA6	TRUE COPY OF THE LETTER NO.FD/PSSC/CLARIF/2003/1 DATED 10.9.2003 OF THE 4TH RESPONDENT.
ANNEXURE RA7	TRUE COPY OF THE ORDER DATED 14.5.2015 IN O.A.638/2015 OF THIS HON'BLE TRIBUNAL.
ANNEXURE RA8	TRUE COPY OF THE LETTER NO.C3/2518/19/RTI/14 DATED 21.11.2014 OF THE STATE PUBLIC INFORMATION OFFICER, GOVERNMENT POLYTECHNIC COLLEGE, KANNUR.
ANNEXURE RA9	TRUE COPY OF THE APPLICATION DATED 20.11.2014 SUBMITTED BY SRI.JACOB

¶210

O.P.KAT Nos.40,70 & 216 of 2018

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ABRAHAM TO THE JOINT DIRECTOR, SITTT & R, KALAMASSERY.

¶213

ANNEXURE RA10 TRUE COPY OF THE LETTER NO.RTI/45873/DTE/2014 DATED 1.1.2015 OF THE STATE PUBLIC INFORMATION OFFICER, OFFICE OF THE 3RD RESPONDENT. ANNEXURE RA11 TRUE COPY OF THE G.O. (RT)NO.3068/2014/HEDN DATED 31.12.2014.160-161. EXHIBIT P1 TRUE COPY OF THE O.A.(EKM)NO.257/2016 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN O.A(EKM) NO.257/2016 OF THIS HON'BLE TRIBUNAL. EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 6,7 AND 9 TO 12 IN O.A(EKM) NO.257 OF 2016. TRUE COPY OF THE RELEVANT PAGES OF THE GRADATION LIST PUBLISHED AS PER ORDER NO.EGI20579/02 DATED 06.06.2006(ANNEXURE R61) EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN O.A (EKM) 257/2016. EXHIBIT P5 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN O.A (EKM) 257/2016. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 10.11.2017 IN O.A (EKM) 257/2016 OF THIS HON'BLE TRIBUNAL. EXHIBIT P7 TRUE COPY OF THE R.A(EKM) NO.23/2017 FILED BY THE PETITIONER AND 10TH

¶214

O.P.KAT Nos.40,70 & 216 of 2018

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RESPONDENT BEFORE THE KAT.

¶217

EXHIBIT P8 TRUE COPY OF ORDER DATED IN R.A (EKM) 23/2017 OF THIS HON'BLE TRIBUNAL.

¶218

EXHIBIT P9 TRUE COPY OF THE RELEVANT EXTRACT OF AICTE REGULATIONS 2010.

¶219

EXHIBIT P10 TRUE COPY OF LETTER NO.E/2694/2017 DATED 31.10.2017 OF THE PRINCIPAL OF GOVERNMENT POLYTECHNIC COLLEGE, EZHUKONE, ADDRESSED TO THE DIRECTOR OF TECHNICAL EDUCATION.

¶220

RESPONDENT'S/S EXHIBITS:

¶221

EXHIBIT R1 A TRUE COPY OF THE PROVISIONAL M.TECH CERTIFICATE WITH SL.NO 523930 DATED 16-JAN-2018 ISSUED BY MAHATMA GANDHI UNIVERSITY,KOTTAYAM TO THE PETITIONER.

¶222

EXHIBIT R1 B TRUE COPY OF NO OBJECTION CERTIFICATE NO-EC2/55771/15/DTE DATED 11.4.2015 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT

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EXHIBIT R1 C TRUE COPY G.O.(RT) NO-3047/2014/H.EDN DATED 29-12-2014.

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EXHIBIT R1 D TRUE COPY OF RELEVANT PAGES OF THE DRAFT REPORT DATED 3.11.2017 OF PRINCIPAL ACCOUNTANT GENERAL (G&SSA),KERALA,THIRUVANANTHAPURAM.

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EXHIBIT R1 E TRUE COPY OF GOVERNMENT CIRCULAR NO.19305/RULE/96/P & ARD DATED THIRUVANANTHAPURAM, 15TH DECEMBER 1997.

P.O.Boben v. Rajasekharan V.M.

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P.O.Boben v. Rajasekharan V.M.

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