Dismissed

A.M. Thomas, v. State of Kerala

Kerala HC1 Mar 2021OP(KAT)/24/2020

Case brief

AI extract

What is this about?

In an original petition under Articles 226 and 227 of the Constitution of India, the High Court of Kerala dismissed the petitioner's challenge against the Kerala Administrative Tribunal's order. The petitioner, who had availed leave without allowance for employment abroad, sought restoration of pension and seniority lost under statutory rules, contending that executive orders were silent on advers

What did the court decide?

The Original Petition filed under Articles 226 and 227 of the Constitution of India is dismissed.

A.M. Thomas, Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2021)

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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 ALEXANDER THOMAS

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THE HONOURABLE MR.JUSTICE K. BABU

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MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942

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OP(KAT).No.24 OF 2020

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ARISING OUT OF THE ORDER DATED 22.10.2019 IN O.A.NO.1406/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONER/APPLICANT:

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A.M.THOMAS, AGED 57 YEARS S/O.MATHAI, SENIOR CLERK (RTD.), GOVERNMENT COLLEGE, MANNAR, RESIDING AT ALAPPATTU KUNNEL MAVADI, NEDUNGANDAM P.O., IDUKKI DISTRICT, KERALA-685553.

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BY ADVS. SRI.T.P.DEYANANTHAN SRI.A.V.RAMAKRISHNA PANICKER

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001, KERALA.

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2 DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM-695033, KERALA.

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3 SENIOR ADMINISTRATIVE OFFICER IN THE

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OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION, VIIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033, KERALA.

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SRI.B.VINOD, SR.GOVERNMENT PLEADER

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O.P.(KAT) No.24/2020

(C.R.)

ALEXANDER THOMAS & K.BABU, JJ.

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--------------------------------------------------------

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O.P.(KAT) No.24 of 2020

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(Arising out of the order dated 22.10.2019 in O.A.No.1406 of 2017 of KAT, Thiruvananthapuram)

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Dated this the 1^st day of March, 2021

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Alexander Thomas, J.

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The prayers in the afore captioned Original Petition filed under Articles 226 & 227 of the Constitution of India are as follows (See page No.7 of the paper book of this Original Petition):

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“........to call for details relating to P1 (A17), P1 (A18) and P1 (A20) and quash the same, setting aside the impugned order of the Hon'ble Tribunal in Ext.P6, allowing the O.A No.1406 of 2017 in the interest of justice.”

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Heard Sri.T.P.Deyananthan, learned counsel appearing for

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the petitioner in the O.P./sole applicant in the O.A before the Tribunal and Sri.B.Vinod, learned Senior Government Pleader appearing for the respondents in the O.P./respondents in the O.A.

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The prayers in Exhibit P1 Original Application, O.A

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No.1406 of 2017 filed by the petitioner herein before the Kerala Administrative Tribunal, Thiruvananthapuram Bench are as follows (See page No.21 of the paper book of this O.P):

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“(i) Call for details relating to Annexures A8, A12, A13, A17, A18 and A20 and quash the same, to the extent it deprives the original seniority, promotions and service benefits to the applicant, and may be directed to restore the same with monitory benefits, illegally denied so far.

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(ii) Issue a direction to the 3^rd respondent to revise the promotion of the applicant in A8, according to cadre

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seniority of LD Clerks, for the periods from 02-01-1985 to 04-09-1989, according to rank assigned as 110 and reckon the position for promotion as UD Clerk and above cadres according to juniority in the A5 order of promotion of UD Clerks, given to his juniors and with consequential relief ; and

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(iii) Grant such other relief, this Honourable Tribunal may deem fit and proper in the circumstances of the case, including interim order and cost.”

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The Tribunal, after hearing both sides, has rendered the

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impugned Exhibit P6 final order dated 22.10.2019 in O.A No.1406 of 2017, whereby the contentions of the petitioner had been repelled and the Original application has been accordingly dismissed. It is this final order at Exhibit P6 that has been impugned in the present Original Petition.

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At the relevant time, the petitioner herein was a Lower Division Store Keeper in the non-teaching service of the Collegiate Education Department of the State Government and he was holding the said post in the Government College, Kattappana. He had then sought for grant of Leave Without Allowance (LWA) to tenure employment abroad as contemplated in Appendix XIIA of Part I KSR. The said application for leave without allowance submitted by the petitioner was favourably recommended by the Director of Collegiate Education as per letter dated 27.9.1996 and thereupon the competent authority of State Government in the Higher Education Department had issued Annexure A3 G.O.(RT) No.1228/96/H.Edn.

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dated 17.10.1996, whereby it was ordered that the petitioner is granted leave without allowance for five years from the date of avail, for taking employment abroad as envisaged in Appendix XIIA of Part I KSR (See page No.25 of the paper book).

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As can be seen from Annexure A4 relieving order dated 16.12.1997, the petitioner was relieved from service with effect from 16.12.1997 and therefore, the said five years period was from 16.12.1997 up to 15.12.2002.

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Thereafter, the petitioner had sought for extension of the said leave period covered by Annexure A3 G.O. dated 17.10.1996. After getting necessary report from the Director of Collegiate Education, the competent authority of the State Government in the Higher Education Department had issued Annexure A6 G.O.(Rt.) No.521/2003/H.Edn. dated 7.4.2003 (see page No.30 of this paper book) granting extension of the said leave without allowance for a further period of five years from 16.12.2002 in terms of the conditions stipulated in Appendix XIIA of Part I KSR. So, it appears that the said extended leave period covered by Annexure A6 dated 7.4.2003 was for a further period up to 15.12.2007.

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Later, the petitioner still sought for further extension of the said LWA period. The Government, after getting report from the

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Director of Collegiate Education Department dated 1.1.2008, had issued Annexure A7 G.O.(Rt) No.452/08/H.Edn. dated 18.3.2008 (see page 31 of the paper book) whereby the said leave without allowance period was further extended by a further period of five years from 16.12.2007 up to 15.12.2012 in continuation of the leave already granted to him under Appendix XIIA of Part I KSR.

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Thereafter, the petitioner had submitted application requesting that he does not wants to enjoy the extended leave without allowance period up to 15.12.2012 as covered by Annexure A7 and that he wants to rejoin duty and that the part of the extended leave period from 20.6.2011 up to 15.12.2012 which is a part covered by Annexure A7 may be treated as cancelled. Thereupon the competent authority of State Government has issued Annexure A9 G.O.(Rt) No.1601/11/H.Edn. dated 4.10.2011, wherein it was ordered that the said part of LWA period from 20.6.2011 up to 15.12.2012 is treated as cancelled in order to enable him to rejoin duty in the post of LD Clerk on 20.6.2011. The petitioner was permitted to rejoin duty with effect from 15.6.2011. It appears that thereupon the petitioner had rejoined duty on 15.6.2011. Later, it appears that the petitioner was promoted to the next category post of UD Clerk on 12.7.2011. In the meanwhile the respondent Director of Collegiate Education had issued Annexure

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A10 proceedings dated 20.3.2013 intimating the petitioner that since he had enjoyed the abovesaid leave without allowance taking employment abroad, he would lose the service benefits in view of the provisions contained in Appendix XIIA of Part I KSR. Thereafter, the petitioner submitted Annexure A11 representation dated 22.2.2016 before the second respondent Director of Collegiate Education stating that since the abovesaid adverse conditions noted in Annexure A10 and invoked on the basis of the provisions contained in Appendix XIIA of Part I KSR have not been stated in Annexures A3, A6 and A7 Government Orders granting him leave without allowance, the said adverse conditions that he would lose the service benefits as envisaged in Appendix XIIA of Part I KSR cannot be made applicable to him. Thereafter, the second respondent Director of Collegiate Education has rejected the plea made by the petitioner as per Annexure A11 representation dated 22.2.2016 by issuing Annexure A13 proceedings dated 13.4.2016 (See page 45 of this paper book). In the impugned Annexure A13 proceedings dated 13.4.2016, the second respondent Directorate of Collegiate Education has taken the up the pin pointed ground that the provisions contained in Appendix XIIA of Part I KSR clearly states about the nature of the adverse consequences flowing from availing leave without allowances taking

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employment abroad as envisaged therein and that therefore, going by the consequences flowing from the statutory provision, the petitioner will necessary lose the service pension in question and therefore, there is no question of granting the reliefs sought for by the petitioner in Annexure A11 representation.

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Being aggrieved by Annexure A13 rejection order dated 13.4.2016 issued by the second respondent Directorate of Collegiate Education that the petitioner had preferred Annexure A14 by styling it as appeal dated 15.4.2016 before the first respondent State Government. Thereafter, the Tribunal, as per Annexure A15 final order dated 2.3.2017 in O.A.(Ekm)No.450 of 2017 had directed the Government to consider and pass orders on Annexure A14 appeal in accordance with law within six weeks, etc. Now an interesting, but unnecessary detour happens inasmuch as the Government has issued Annexure A17 G.O.(Rt)No.598/2017/H.Edn. dated 29.3.2017 ordering that Annexure A6 G.O. dated 7.4.2003 will stand corrected and that sanction for extension of LWA for employment abroad for the period from 16.12.2002 to 15.12.2007 covered by Annexure A6 will be retrospectively under Appendix XIIA of Part I KSR in relaxation of Rule 9 therein. So also, the Government has issued Annexure A18 G.O.(Rt) No.599/2017/H.Edn. dated 29.3.2017

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ordering that Annexure A7 G.O.(Rt) No.452/2008/H.Edn. dated 18.3.2008 will stand corrected and sanction is accorded for extension of LWA for employment abroad for the period from 16.12.2007 up to 16.6.2011 retrospectively under Rule 9 of Appendix XXIA of Part I KSR.

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The petitioner has thereupon filed Annexure A19 representation dated 17.4.2017 before the State Government challenging Annexure A17 and Annexure A18 Government Orders. Later, the State Government has rejected the plea made by the petitioner in Annexure A14 appeal dated 15.4.2016 by issuing Annexure A20 G.O.(Rt)No. 1213/2017/H.Edn. dated 20.6.2017. It is this order at Annexure A20 that has been challenged before the Tribunal which has been repelled and rejected as per the impugned Exhibit P6 final order rendered by the Tribunal on 22.10.2019 in O.A.No.1464 of 2017.

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From a reading of Annexures A3 and A6 as well as Annexure A7, as modified by Annexure A9, it can be seen that on the sole volition, the petitioner had sought for leave without allowance for taking employment abroad in accordance with the provisions contained in Appendix XIIA of Part I KSR. The Government has granted the said plea of the petitioner for leave without allowance for

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the period in question. In that regard, the petitioner had sought for cancelling unavailed portion of the last spell of the extended leave, which has been acceded to by the Government as per Annexure A9, and the petitioner had rejoined duty on 15.6.2011. This aspect of the matter is common ground between the rival parties. Hence the petitioner has enjoyed leave without allowance for taking employment abroad in terms of Appendix XIIA of Part I KSR for the period from 16.12.1997 up to 15.6.2011. It is true that the abovesaid Government Orders granting request of the petitioner for leave without allowance for taking employment abroad in terms of Appendix XIIA of Part I KSR do not say explicitly that the adverse conditions flowing from Rule 4 of Appendix XIIA of Part I KSR will apply in the leave so granted to the petitioner. So the prime contention urged by the petitioner is that since the abovesaid Government Orders are silent about the adverse conditions otherwise envisaged in Appendix XIIA of Part I KSR, the petitioner cannot be fastened with such adverse conditions though it may be part of the Rule inasmuch as the executive orders granting leave without allowance to him for taking employment abroad are silent about those aspects. Both sides have no quarrel that Appendix XII A of Part I KSR would regulate this scenario. It is also be borne in mind that all

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the above said Government Orders, provided as per Annexures A3 and A6 as well as A7, as modified by Annexure A9, has stated explicitly that the leave without allowance may be granted as envisaged in Rule XIIA of Part I KSR. Appendix XIIA of Part I KSR has been framed in accordance with the provisions contained in Rule 110B of Part I KSR. Rule 4 of Appendix XIIA of Part I KSR reads as follows:

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“4. Permanent Officers and non-permanent officers in the regular service of Government who have completed probation in the grade in which they are working, including entry grade, may be granted leave without allowances under these Rules. In such cases, for, and during the currency of, the period of leave, the officers shall lose all service benefits such as the earning of leave including half pay leave, pension, gratuity, increment, etc. and also promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave. They shall also lose seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before they rejoin duty.”

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It is by now well settled by series of rulings of this Court that those officials who were taken up the benefit of securing leave without allowance for taking up employment abroad will have to face the adverse consequences flowing from Rule 4 of Appendix XIIA of Part I KSR inasmuch they will loss all service benefits such as earning of leave including half pay leave, pension, gratuity, increment etc., and also the promotion chances that may arise with respect to seniority in the post from which they proceeded on leave and they shall also lose

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seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before they rejoin duty. Merely because the abovesaid statutory provisions engrafted in Rule 4 of Appendix XIIA are not explicitly stated in clear terms that the petitioner will lose the abovesaid service benefits by enjoying leave without allowance is no ground to contend that the said statutory provisions will loss their efficacy. When the application itself is submitted by the incumbent like the petitioner seeking for leave without allowances, in accordance with Appendix XIIA of Part I KSR for taking up employment abroad, all the pluses and minuses thereof will go together and incumbent like the petitioner cannot contend that he should be permitted to enjoy the bright side of it and that they should not face the adverse consequences flowing there from even it is mandatory in the Rules, so long as the said adverse conditions are not explicitly incorporated in the executive orders granting such leave without allowances. The said plea of the petitioner to say the least is hyper technical and cannot be countenanced in the eye of law. For that reason, the Government cannot be blamed for rejecting the said plea of the petitioner as per the impugned order. This is the heart and soul of the main controversy in this case and therefore on the sole ground the

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petitioner cannot succeed in this matter and the Tribunal cannot be faulted.

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The petitioner has raised certain contentions based on Annexures A17 and A18 Government Orders issued by the Government. The petitioner would contend that Annexures A17 and A18 are per se illegal and without jurisdiction and the same should be recalled by the Government and further he had submitted Annexure A19 representation.

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It appears that the Government had issued Annexure A6 on 7.4.2003 for extension of the leave period for a further period of five years from 16.12.2002. By the time, the Government had processed the request of the petitioner and had formally issued Annexure A6 on 7.4.2003. The leave period in question, which was sought to be extended, had already expired on 16.12.2002 and therefore, the said extension was done as per Annexure A6 dated 7.4.2003, but with effect from 16.12.2002 for the five years period in question. The said aspect is also seen discernible in the case of Annexure A7 which is issued in 18.3.2008 inasmuch as the leave period therefore sought to be extended thereby had expired on 16.12.2007. Thus by Annexure A7 also, the leave period has been extended by the Government on 18.3.2008, but with effect from

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16.12.2007 for the five years period in question.

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It appears that the Government Authorities were under the apprehension that as Annexures A6 and A7 were issued only subsequently after the leave period had expired by then, may amount to a deviation from the Rules in Appendix XIIA inasmuch as Rule 9 thereof consists of unauthorised absence of personnel who absent themselves without getting the leave sanctioned and that therefore, this may amount to contravention of Rule 11 thereof which speaks that no relaxation of any of the Rules to be allowed.

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After hearing both sides, we are of the firm view that the said aspects discernible from Annexure A17 and Annexure A18 were rather irrelevant and unnecessary. A reading of Annexures A3 and A6 as well as Annexure A7, as modified by Annexure A9, would make it clear that the petitioner had made a request in the application for grant of the leave and the subsequent extension of leave. It so happened that the said request for extension of leave would have faced delay at the hands of the various authorities concerned including the Director of Collegiate Education and ultimately by the time, the Government had issued Annexures A6 and A7, the last of the leave period, which is sought to be extended, had by then expired. In the result, Annexures A6 and A7 were technically

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amounted to a so called retrospective extension of the leave period. Thus the Government had thought rather unnecessarily in the facts of this case that it would amount to deviate from the Rule and that therefore, to ensure that the said proceedings are not considered as if it was irregular and therefore, the petitioner was in an unauthorised absence, etc. by way of abundant caution unnecessarily issued Annexures A17 and A18 modifying Annexures A6 and A7 with the only rider that the same is done retrospectively, etc. In the facts and circumstances of the case, inasmuch as the petitioner had made a request in the application for extension of time and the same was pending consideration before various authorities and merely because there was some time taken by those authorities and ultimately there was some delay on the part of the State Government in issuing orders as in Annexures A6 and A7 will not lead to the situation of the existence of the jurisdictional facts either in Rule 11 or in Rule 9. Rule 11 which speaks about no relaxation of the Rules, and Rule 9 which speaks about so called unauthorised absence of the incumbents, etc. will not apply in the instant case. Therefore, the entire exercise in a case of Annexure A18 may not have been necessary at all. That apart, one of the contentions of the petitioner appear to be that the abovesaid leave without allowance has been granted to him in

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relaxation of the Rules and therefore, even the adverse conditions in Rule 4 of Appendix XIIA of Part I KSR will stand relaxed and therefore, those adverse conditions cannot be invoked as against him. The said contention of the petitioner is to say is hyper technical and appears to be flowing from Annexures A17 and A18. But, since the petitioner himself has challenged Annexures A17 and A18 by filing Annexure A19 representation and there is also a prayer in the O.A. filed before the Tribunal challenging Annexures A17 and A18 in the O.A. as well as in this O.P., the said contention of the petitioner apparently based on Annexures A17 and A18 cannot be availed by him. On the one hand, the petitioner would challenge Annexures A17 and A18. On the other hand, he would contend that the relaxation ordered in Annexures A17 and 18 would amount to relaxation of even the adverse conditions in Rule 4 of Appendix XIIA. Apart from the fact that the said contention is otherwise untenable, the petitioner is estopped from raising such contradictory contentions especially after having challenged Annexures A17 and A18. We already have taken the considered view that Annexures A17 and Annexure 18 were an unnecessary detour in the facts and circumstances of the case and therefore, nothing significantly turns in this case irrespective as to the outcome of the challenge as against Annexures A17 and A18. The

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heart and soul of the controversy as indicated herein above is as to whether the adverse conditions stipulated in the statutory provision contained in Rule 4 of Appendix XIIA of Part I KSR would apply in this case even though the executive orders granting leave without allowance as per Annexures A3, A6, A7 and A9 are silent about those adverse conditions flowing from Rule 4 of Appendix XIIA of Part I KSR. Even though the said executive orders have clearly spoken about Appendix XII A, the answer to that primary issue has already been answered by us herein above and therefore, it need not be reiterated. In other words, the contentions of the petitioner are not tenable and bereft of any merit. The Tribunal cannot be faulted for having rendered the impugned final order at Exhibit P6 in this case.

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The Original Petition fails and the same therefore stands dismissed.

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Sd/- ALEXANDER THOMAS JUDGE

Sd/-

K. BABU, JUDGE

csl/KAS

O.P.(KAT) No.24/2020

APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE OA NO.1406/2017.
ANNEXURE P1(A1)	TRUE COPY OF APPOINTMENT ORDER NO.ESTT. C6-60547/84/COLL. EDN. DATED 21/04/1987.
ANNEXURE P1(A2)	TRUE COPY OF THE CERTIFICATE NO.1210/91 DATED 14/01/1991 ISSUED BY THE KPSC A/C TEST LOWER.
ANNEXURE P1(A3)	TRUE COPY OF THE GO(RT) NO.1228/96/H.EDN. DATED 17/10/1996 GRANTING LEAVE-1.
ANNEXURE P1(A4)	TRUE COPY OF THE RELIEVING ORDER NO.B1/669/96 DATED 16/12/1997.
ANNEXURE P1(A5)	TRUE COPY OF ORDER NO.ESTT. C2-2710/200/COLL. EDN. DATED 09/05/2000 OF UD CLERKS OF JUNIORS.
ANNEXURE P1(A6)	TRUE COPY OF GO(RT) NO.521/2003/H.EDN. DATED 07/04/2003 GRANTING LEAVE-2.
ANNEXURE P1(A7)	TRUE COPY OF GO(RT) N.452/08/H.EDN. DATED 18/03/2008 GRANTING LEAVE-3.
ANNEXURE P1(A8)	TRUE COPY OF ORDER NO.C2-.36657/2010/COLL. EDN. DATED 19/07/2011 OF U.D. CLERKS PROMOTION OF APPLICANT.
ANNEXURE P1(A9)	TRUE COPY OF ORDER (RT) NO.1601/2011/H.EDN. DATED 04/10/2011 PERMITTED TO JOIN DUTY.
ANNEXURE P1(A10)	TRUE COPY OF ORDER NO.C4-9267/2012/COLL. EDN. DATED 20/03/2013 GRANTING LEAVE.
ANNEXURE P1(A11)	TRUE COPY OF THE REPRESENTATION TO R2 DATED 22/02/2016.
ANNEXURE P1(A12)	TRUE COPY OF NO.C1-7454/2016/COLL. EDN. DATED 04/03/2016 SENIORITY LIST OF UD CLERK SL. NO.75.
ANNEXURE P1(A13)	TRUE COPY OF LR.NO. C1-9967/2016/COLL.EDN. DATED 13/04/2016 REJECTING CLAIM
ANNEXURE P1(A14)	TRUE COPY OF APPEAL DATED 15/04/2016.
ANNEXURE P1(A15)	TRUE COPY OF ORDER DATED 02/03/2017 IN OA (EKM) 450/2017.
ANNEXURE P1(A16)	TRUE COPY OF THE POSTAL TRANSCRIPTION RECEIPT DATED 08/03/2017.

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ANNEXURE P1(A17)	TRUE COPY OF GO(RT) NO.598/2017/H.EDN. DATED 29/03/2017.
ANNEXURE P1(A18)	TRUE COPY OF GO(RT) NO.599/2017/H.EDN. DATED 29/03/2017.
ANNEXURE P1(A19)	TRUE COPY OF REVIEW PETITION DATED 17/04/2017.
ANNEXURE P1(A20)	TRUE COPY OF GO(RT) NO.1213/2017/H.EDN. DATED 26/06/2017.
EXHIBIT P2	THE TRUE COPY OF THE REPLY STATEMENT ON 31/10/2017.
EXHIBIT P3	THE TRUE COPY OF THE REJOINDER ON 30/11/2017 TO THE REPLY STATEMENT OF THE 2ND RESPONDENT.
EXHIBIT P4	THE TRUE COPY OF THE REPLY STATEMENT TO THE OA ON 28/03/2018.
EXHIBIT P5	THE TRUE COPY OF THE REJOINDER TO THE REPLY STATEMENT OF THE 1ST RESPONDENT DATED 25/05/2018.
EXHIBIT P6	THE CERTIFIED COPY OF THE IMPUGNED ORDER DATED 22/10/2019 IN OA NO.1406/2017.

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O.P.(KAT) No.24/2020 19

A.M. Thomas, v. State of Kerala

Case brief

What is this about?

What did the court decide?

A.M. Thomas, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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