# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS**
## **&**
**THE HONOURABLE MR. JUSTICE T.R.RAVI**
**WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942**
**OP(KAT).No.262 OF 2020**
**AGAINST THE ORDER/JUDGMENT IN OA 1595/2019 DATED 13-01-2020 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM**
## **PETITIONER/S:**
**DR. PREEMA E.P., AGED 42 YEARS W/O. RIYAS. Y, PROFESSOR(CAP), DEPARTMENT OF ORGANON OF MEDICINE, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, IRANIMUTTOM, MANACAUD P O, THIRUVANANTHAPURAM - 695009, RESIDING AT SHANGRILA, PUNCHAKKARI, THIRUVALLAM PO, THIRUVANANTHAPURAM - 695027.**
**BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN**
## **RESPONDENT/S:**
**1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, DEPARTMENT OF AYUSH, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. 2 THE CHAIRMAN, DEPARTMENT PROMOTION COMMITTEE (HIGHER), DEPARTMENT OF HOMEOPATHIC MEDICAL EDUCATION (SECRETARY, KERALA PUBLIC SERVICE COMMISSION), PATTOM, THIRUVANANTHAPURAM - 695004, 3 THE CONVENER (PRINCIPAL SECRETARY TO GOVERNMENT), AYUSH DEPARTMENT, DEPARTMENTAL PROMOTION COMMITTEE, SECRETARIAT, THIRUVANANTHAPURAM - 695001.**
## **OTHER PRESENT:**
## **SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER**
**THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**OP(KAT).No.262 OF 2020**
**2**
# **ALEXANDER THOMAS & T.R. RAVI, JJ.**
## **=========================**
## **O.P.(KAT) No. 262 of 2020**
_(arising out of order dated 13.1.2020 in OA No.1595/2019 of the KAT, TVM Bench)_
**------------------------------------------------------------------------Dated this the 13[th] day of January, 2021**
## **JUDGMENT**
## **Alexander Thomas, J.**
The prayers in the aforecaptioned OP(KAT) filed under Articles 226
## and 227 of the Constitution of India are as follows :
_i. “Call for the records leading to Ext.P4 order of the Tribunal and set aside the direction therein against convening DPC (Higher) for considering the promotion of the petitioner as Professor (Cadre) till the Government decides on laying down API norms and assessment under the PBAS. ii. Direct the respondents to include the name of the petitioner in Annexure A or convene the DPC (Higher) for considering the claim for promotion of the petitioner as Professor in the Department of Organon of Medicine pursuant to Annexure-A12 on similar lines in Ext.P5 order of the Tribunal forthwith and grant her all consequential benefits. iii. To allow the prayers sought for in Ext.P1 OA iv. Issue such other and futher reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. v. Award costs to the petitioner.”_
2. Heard Sri.K.Jaju Babu, learned senior counsel instructed by
Sri.Brijesh Mohan, learned counsel appearing for the petitioner in the
original petition/original applicant before the Tribunal and Sri.B.Unnikrishna Kaimal, learned Government Pleader for all the 4 official respondents in the OP/respondents in the OA.
3. The complaint of the petitioner is against the non-convening of
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the Department Promotion Committee (DPC) for effecting further promotion to the post of cadre of Professor. The original petitioner/original applicant in the Tribunal is now placed as a Professor (CAS) as per the career advancement promotion scheme in the Homeopathic Medical Education Department under the 1[st] respondent, State Government in the Ayush Department and the 4[th] respondent, Controlling officer of the Homeopathic Medical College Education Wing in the State. She had initially entered into that service as tutor in Organon Medicine as per Annexure-A1 appointment order dated 27.9.2006. She was further promoted to the post of Lecturer as per Annexure-A2 proceedings dated 5.4.2010 and then promoted to the post of reader as per Annexure-A3 proceedings dated 30.10.2014. It is later that the petitioner has been granted career advancement promotion (CAP) as Professor, in terms of the aforementioned career advancement scheme promotions (CAS) as per Annexure-A4 order dated 28.3.2019. It is the case of the petitioner that her probation in the post of reader was successfully declared by the competent authority of the respondents on 1.5.2015. Incidentally, it is also pointed out that she possess MD Homeopathy as on 26.7.2007 and the petitioner would assert that she is fully eligible and entitled for promotion as Professor, Department of Organon of Medicine.
4. Further, it is the case of the petitioner that vacancies are indeed
**OP(KAT).No.262 OF 2020**
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available in the cadre of Professor in the abovesaid department in respect of the vacancies which have arisen for the period from 1.11.2017 to 1.5.2019. Further, she would say that she has been duly included in the Field of Choice by the Department Promotion Committee (DPC) convened on 4.2.2019 for preparation of select list of eligible readers fit for promotion as Professor. It appears that though the petitioner has already secured the career advancement promotion scheme as Professor, she has not been granted regular promotion to the cadre of Professor. Further that, the original petitioner along with one Dr.B.Rithesh was duly considered by the DPC and as per Annexure-A7 proceedings dated 4.2.2019. The DPC has indeed prepared the select list including only one person therein,viz, the abovesaid Sri.B.Rithesh for further promotion in the cadre of Professor. It appears that the case is that the selection in the anticipated vacancies which will then due to arise on 1.5.2019 was deferred seeking clarification as to whether the UGC guidelines which required Performance Based Appraisal System (PBAS) and Academic Performance Indicators (API) would be applicable for further promotion.
5. According to the petitioner, she has been consistently seeking for action at the end of the 3[rd] respondent, convener of the DPC to convene the DPC forthwith and to effectuate further promotion to the post in the cadre of Professor in the Organon Medicine without any further delay.
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6. In the case set up by the respondents 1 to 4 in the OA before the Tribunal, they would say as per GO (P) No. 48/2012/Fin dated 13.1.2012, the competent authority of the State Government has duly implemented the University Grants Commission (UGC) regulations to the teaching staff of Homeopathic Medical Colleges with effect from 1.1.2011 and that the norm based on API consideration is mandatory under the UGC regulations for CAP. Further, there is an exception upto 31.5.2018 that was granted to the Homeopathic Department for all regular promotions/CAPs. Further that, clarifications in short from the higher authority as to whether the incumbents could exercise option after the abovesaid cut off period of 31.5.2018 and whether state scale payable to us would be eligible for exemption from API norms is pending consideration at the hands of the competent authority of the Government, Finance Department. Hence, the respondents in the OA have pleaded before the Tribunal that it is only after receipt of requisite clarification from the competent authority of the State Government in the Finance Department, that the issues regarding the convening of the DPC could be duly settled for necessary constitutional action for the actual convening of the DPC thereafter.
7. It appears that the Controlling officer (R4) has stated before the Tribunal that the teacher incumbents of the Homeopathic Medical Colleges are in the UGC scheme and they are governed by the API as well as PBAS,
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which is mandatory with effect from 1.6.2018 as per GO(Rt.) No.495/2018/Ayush dated 28.9.2018 issued by the competent authority of the 1[st] respondent-State Government in the Ayush Department. Further that, for convening DPC (higher) a clarification was indeed sought as to whether teaching incumbents with post graduate qualification would remain in State scale or has to be brought over in the UGC scale and also the manner and method in which the valuation process has been carried out under the UGC norms by resorting to API as well as PBAS norms. That discussion is being conducted as between the competent authority of the 1[st] respondent-Ayush Department and 4[th] respondent-Controlling Officer. It appears that the Principal of the Government Homeopathic Medical College, Thiruvananthapuram is the designated controlling officer.
8. It is accordingly the case of the respondent-controlling officer that it is only after due decision is taken and modalities of graduation of API as well as PBAS is finalised that the actual process of convening of DPC (Higher) would be taken up and that it is only on this basis that the case of the petitioner herein for regular promotion to the cadre of Professor could be considered by the DPC.
9. On the basis of the abovesaid facts and circumstances, the Tribunal has found that though the name of the petitioner was also sought to be considered along with the other incumbent concerned (one
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Dr.B.Rithesh) his name has been omitted to be considered for the aforestated reasons, whereas the other incumbent concerned has been granted regular promotion based on DPC consideration. The purported justification for this as urged by the respondents is that the Homeo Department concerned was indeed exempted from the enforcement of the API and PBAS norms upto 31.05.2018, though the UGC scheme was implemented in the Homeopathic Medical Colleges with effect from 01.01.2011 as per the abovesaid GO dated 13.01.2012.
10. Further, the respondents would urge that the said exemption was indeed taken away and the UGC regulations are made mandatory with effect from 1.6.2018 as per the stipulations in GO (Rt.) No. 495/2018/Ayush dated 28.9.2018. The respondents have thus pleaded and urged before the Tribunal that even going by the case of the petitioner/original applicant, the claim put up by her is one as against the vacancy which is said to have arisen on 1.5.2019, which is after the enforcement of the UGC regulations which is after the adoption of the UGC norms and the enforcement of the mandatory API and PBAS norms in the Homeopathic Medical Education.
11. It is thus urged by the respondents that the non-consideration of the name of the petitioner by the DPC was only on account of these crucial factual aspects for which the respondents cannot be found fault with
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legally, etc. Taking note of these factual aspects, the Tribunal, as per the impugned final order dated 13.01.2020 has noted the abovesaid factual aspects urged by the respondents and held that immediately after the government and the department concerned finalises the modalities and lays down the API norms and the assessment to be carried out by the PBAS, it shall be ensured by the competent authority among the respondents that the DPC is convened without any further delay and the claim of the applicant is considered in accordance with the same, etc.
12. We also note that the petitioner also placed reliance on Ext.P-5 final order dated 14.08.2019, rendered by the Tribunal in O.A. No.1124/2019. Therein, Sri.B.Unnikrishna Kaimal, learned Government Pleader would point out that a mere reading of paragraph No.2 of Ext.P-5 order would indicate that the vacancy claimed by the incumbent therein in a different branch is one which has arisen on 01.05.2018, which is before the cut off date of 01.06.2018. Whereas the vacancy claimed by the petitioner in this case for regular promotion is one which is said to have arisen on 01.05.2019 and that therefore, the petitioner cannot place serious
reliance on Ext.P-5 order, though there was a direction therein to immediately place the case of the petitioner therein before the DPC for its consideration.
13. After hearing both sides in extenso and after giving anxious
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consideration, it is seen that the impugned Ext.P-4 final order rendered by the Tribunal as early as on 13.01.2020. It appears that not much has progressed on the part of the 2[nd] respondent competent authority of the State Government in the Ayush Department as well as the 4[th] respondent Controlling Officer, to get into the nitty-gritty of laying down the requisite norms so as to ensure the early convening of the DPC, for making regular promotion in the cadre of professor. It has to be borne in mind that the service in question is one pertaining to Homoeopathic Medical Education, which is one vital wing of medical education and the public health sector as a whole and especially in the times of COVID-19 pandemic issues, there cannot be two opinions that the services in such medical and health wings are geared to its maximal or at least optimal efficiency and the last thing that should be contemplated is any sense of demoralization among the officials of such vital wings.
14. It appears that the instant original petition has been filed as early as in the year 2019. We are not aware as to the reasons for the long and inordinate delay in expediting the finalization of this administrative process, which are fully within the domain and province of the respondents. Presumably, some delay would have occurred on account of the national lock down, which all of us faced since 24[th] March,2020 which was partially lifted a month thereafter and certainly the impact of COVID-19
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pandemic issues will also had a decelerating effect on administrative efficiency. That aspect of the matter is highly understandable. Incidentally, it appears that today (13.01.2020) appears to be the first birth anniversary of the impugned Ext.P-4 order dated 13.01.2020 rendered by the Tribunal.
At least about 10 months have elapsed after the lock down. Certainly things are moving in the right direction as regards management of the COVID-19 pandemic issues. But administrative delay and that too based on COVID-19 pandemic issues cannot be the basis to prolong this process any further.
15. Sri. K. Jaju Babu, learned counsel appearing on behalf of the original petitioner has urged various aspects on the merits of the matter and has also pointed out as an alternate submission that even going by the stipulations so far, the norms based on API and PBAS are applicable in the case of career Advancement Promotion Scheme and not necessarily for regular promotion in the cadre of Professor etc. Further that, if the matter is delayed and ultimately the competent authorities themselves decide that PBAS and API norms are applicable only for CAP promotion and not for regular cadre promotion, then any further delay would lead to a situation of serious and manifest injustice and inequity.
16. Sri.B.Unnikrishna Kaimal, learned Government Pleader appearing for the respondents would point out that the 4[th] respondent-
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Controlling officer has specifically pleaded before the Tribunal that the teaching faculty members of the Homeopathic Medical Colleges, who are indeed in the UGC scheme are governed by the API as well as PBAS system norms, which is mandatory with effect from 01.06.2018 as per the stipulations in GO(Rt) No.495/2018/Ayush dated 28.09.2018, not only for non-cadre promotions like CAP promotions, but also for cadre promotions as well etc.
17. Further, Sri.B.Unnikrishna Kaimal, learned Government Pleader would submit that since he has no precise factual instructions on the subsequent developments of this case, this Court may not enter into the merits of the controversy, if the matter is being finally disposed of.
18. The said submission made by Sri.B.Unnikrishna Kaimal, learned Government Pleader appearing for the respondents has to be countenanced by this Court. However, though the Tribunal has very liberally left the matters to the full discretion and liberty of the competent authority of the respondents to ensure the expeditious finalization of the action to be taken by them in this regard, for the convening of the DPC and thereafter, the case of the petitioner will be considered by the said DPC process, so far, no effective action is forthcoming even though more than one long year has elapsed after rendering of the said impugned order by the Tribunal.
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19. If duties and responsibilities are not effectively and expeditiously performed by the competent authorities concerned, then certainly, there cannot be two opinions that mandamus would lie at least to ensure that those duties and responsibilities are duly discharged by the authorities, without any further delay.
20. Accordingly, it is ordered that the competent authority of the 1[st] respondent-State Government in the Ayush department as well as the 4[th] respondent-Controlling Officer of the Medical Educations Service and if necessary, the Government in the Finance Department will ensure that all necessary action is taken up immediately to ensure that the final details of the matter are finalised without any further delay and due decision is taken as to whether the API and PBAS norms are indeed applicable not only to CAP promotions, but also to cadre promotions and if that be so, the further final details for laying down the methodology for effectuating such regular cadre promotions by laying down the stipulations and norms in that regard for effectuating such API and PBAS systems should indeed be finalised, without any further delay, at any rate, within an outer time limit of two months from the date of production of a certified copy of this order. In that regard, we also note the fervent plea made by Sri.B.Unnikrishna Kaimal, the learned Government Pleader appearing for the respondents that at least 4 to 5 months may be granted by this Court.
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21. After giving anxious consideration to both sides, we have constrained to hold that we cannot countenance the said appeal made by the learned Government Pleader for and on behalf of the respondents. There has been significant and inordinate delay in matter. Any further delay will only be detriment to the public interest and would go against the good morale of the public service concerned.
22. Accordingly, we are not in a position to grant such long time of 4 to 5 months to the competent authority of the 1[st] and 4[th] respondents for ensuring the due completion of the minimal things that are to be effectuated by them on this crucial aspect. It has been urged by the learned senior counsel appearing on behalf of the petitioner that all similarly situated senior incumbents of the petitioner have already secured regular promotion to the cadre of Professor of Organon Medicine under the Homeopathic Medical Education service of the State Government and that though the petitioner's name was placed before the DPC, he has been made to miss the best only on account of the abovesaid aspects and that this Court may at least direct that he should be provisionally/temporarily promoted to the post of Professor of medicine of Organon to the existing vacancy, by virtue of the enabling powers conferred under Rule 31(a)(i) of KS & SSR Part II.
23. Sri.B.Unnikrishna Kaimal, learned Government Pleader
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appearing for the respondents would submit that he has no factual instructions as to whether the petitioner is the senior most claimant and as to whether any vacancy for such regular promotion is indeed arisen and is available, etc.
24. Per contra, the learned senior counsel would point out that the factum of the arising of the vacancy and its continued availability with effect from 01.05.2019 is indeed admitted by the respondents as can be seen from a mere reading of the impugned order rendered by the Tribunal in this case at Ext.P4.
25. Having regard to the facts and circumstances of this case and taking note of the inordinate delay in the matter and also taking note of the fact that the petitioner's case was indeed put up before the DPC along with another incumbent and his name to be considered only on account of the abovesaid circumstances, it is ordered in the interest of justice that the competent authority among the respondents more particularly, the 1[st] and 4[th] respondents will immediately ensure that in case vacancies are available and the petitioner's turn for promotion as against the available vacancy has arisen, and no senior to the petitioner is awaiting for any such promotion, then it shall be ensured that the case of the petitioner for provisional/temporary promotion in terms of Rule 31 (a)(i) of the KS & SSR Part-II is taken up for consideration, without any further delay and
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orders in that regard may be passed without any further delay, at any rate, within an outer time limit of 3 weeks from the date of production of a certified copy of this order.
26. We hope and trust that the competent authority among the respondents, more particularly, the 1[st] respondent and 4[th] respondent will not unnecessarily delay the consideration of the case of the petitioner at least for such temporary promotion under Rule 31 (a) (i), on untenable and inappropriate grounds and that the said competent authorities would rise up to the occasion to appreciate the gravity of the situation and do the needful, in accordance with law, without much delay, at any rate, within the abovesaid outer time limit of 3 weeks.
27. It is also directed that the specific directions in para.20 of this judgment are complied with by the authorities of the Government in the Ayush Department, the Controlling Officer and the Government in the Finance Department (if involved) within 2 months from the date of receipt of a certified copy of this judgment. Thereafter, the case of the petitioner for regular cadre promotion as Professor shall be placed for the DPC's consideration and decision within 1 month thereafter. It is made clear that if the authorities do not comply with the directions in para 20 of this judgment within 2 months, then the case of the petitioner for regular cadre promotion shall be considered and decided by the DPC within 1 month
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thereafter, as has been done in the case of the abovesaid Sri.B.Rithesh.The Secretary to the office of the Advocate General will forward copies of this judgment to the Principal Secretary to Government in the Ayush Department and the Controlling Officer of Homeopathic Medical Education immediately for information and necessary action for compliance.
28. The impugned final order dated 30.01.2020, rendered by the Kerala Administrative Tribunal, Thiruvananthapuram bench in O.A. No.1595/2019 will stand modified to the abovesaid extent.
With these observations and directions, the aforecaptioned original petition will stand finally disposed of.
Sd/-
**ALEXANDER THOMAS, JUDGE**
sd/-
**T.R.RAVI, JUDGE**
SKS
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE O.A NO.1595/2019 ALONG WITH ANNEXURE A1 TO A12 FILED BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.**
**ANNEXURE A1 TRUE COPY OF THE APPOINTMENT ORDER OF THE APPLICANT DATED 27.09.2006 WITH NO.3266/E#1/2001/GHMCT ISSUED BY THE 4TH RESPONDENT.**
- **ANNEXURE A2 TRUE COPY OF THE ORDER OF PROMOTION OF THE APPLICANT FROM THE POST OF TUTOR TO THE POST OF LECTURER DATED 05.04.2010 VIDE GO(RT) NO.1466/2010/H&FWD, ISSUED BY THE 1ST RESPONDENT.**
- **ANNEXURE A3 TRUE COPY OF THE PROMOTION ORDER OF THE APPLICANT FROM THE POST OF LECTURE TO THE PO ST OF READER VIDE GO(RT) NO. 3532/2014/H&FWD DATED 30.10.2014 OF THE 1ST RESPONDENT.**
- **ANNEXURE A4 TRUE COPY OF THE GOVERNMENT ORDER SANCTIONING CAP TO THE APPLICANT VIDE GO(RT) NO.197/2019/AYUSH DATED 28.03.2019 OF THE 1ST RESPONDENT.**
- **ANNEXURE A5 TRUE COPY OF THE DEGREE OF DOCTOR OF MEDICINE -MD HOMEOPATHY DATED 26.07.2007 ISSUED BY THE FACULTY OF HOMEOPATHY, CALICUT UNIVERSITY TO THE APPLICANT.**
- **ANNEXURE A6 TRUE COPY OF THE NOTES SUBMITTED TO THE MEETING OF DPC HIGHER OF HOMEOPATHIC MEDICAL EDUCATION DEPARTMENT FOR THE POST OF PROFESSOR FOR THE YEAR 2018 ALONG WITH THE FILED OF CHOICE.**
- **ANNEXURE A7 TRUE COPY OF THE MINUTES OF THE MEETING DPC(HIGHER) DEPARTMENT OF HOMEOPATHIC EDUCATION HELD ON 04.02.2019.**
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|**ANNEXURE A8**|**TRUE COPY OF KERALA STATE HOMEOPATHIC**|
|---|---|
||**MEDICAL COLLEGES SERVICE RULES, 2001**|
||**PUBLISHED BY GO(P) NO. 79/2001/H&FWD DATED**|
||**19.03.2001.**|
|**ANNEXURE A9**|**TRUE COPY OF GO(P) NO.48/2012/FIN DATED**|
||**13.01.2012 OF THE 1ST RESPONDENT.**|
|**ANNEXURE A10**|**TRUE COPY OF GO(MS) NO.37/2018/AYUSH DATED**|
||**21.12.2018 OF THE 1ST RESPONDENT.**|
|**ANNEXURE A11**|**TRUE COPY OF THE KERALA STATE HOMEOPATHIC**|
||**MEDICAL EDUCATION(TEACHING) SERVICES**|
||**SPECIAL RULES 2019 PUBLISHED BY GO(p0**|
||**NO.6/2019/AYUSH DATED 11.03.2019.**|
|**ANNEXURE A12**|**TRUE COPY OF THE REPRESENTATION SUBMITTED**|
||**BY THE APPLICANT BEFORE THE 3RD RESPONDENT**|
||**DATED 25.03.2019.**|
|**EXHIBIT P2**|**TRUE COPY OF THE REPLY STATEMENT DATED**|
||**19.11.2019 FILED ON BEHALF OF THE 1ST**|
||**RESPONDENT IN OA NO.1595/2019 BEFORE THE**|
||**HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,**|
||**THIRUVANANTHAPURAM.**|
|**EXHIBIT P3**|**TRUE COPY OF THE REPLY STATEMENT DATED**|
||**24.12.2019 FILED ON BEHALF OF THE 4TH**|
||**RESPONDENT IN OA NO.1595/2019 BEFORE THE**|
||**HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,**|
||**THIRUVANANTHAPURAM.**|
|**EXHIBIT P4**|**TRUE COPY OF THE ORDER DATED 13.01.2020 IN**|
||**OA NO. 1595/2019 OF THE HON'BLE KERALA**|
||**ADMINISTRATIVE TRIBUNAL,**|
||**THIRUVANANTHAPURAM.**|
|**EXHIBIT P5**|**TRUE COPY OF THE ORDER DATED 14.08.2019 IN**|
||**OA NO.1124/2019 OF THE HON'BLE KERALA**|
||**ADMINISTRATIVE TRIBUNAL,**|
||**THIRUVANANTHAPURAM.**|