## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**THURSDAY, THE 31ST DAY OF OCTOBER 2019 / 9TH KARTHIKA, 1941**
**OP (CAT).No.17 OF 2016(Z)**
**AGAINST THE ORDER/JUDGMENT IN OA 724/2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH**
## **PETITIONERS/APPLICANTS:**
**1 HUSSAIN A., S/O.KIDAVE M.P, AGAM HOUSE, KAVARATTI, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, KAVARATTI ISLAND, U.T OF LAKSHADWEEP. 2 K.P.KALEEL, S/O.KALID, KUTTIPAPE PURA HOUSE, KAVARATTI, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, KAVARATTI ISLAND, U.T OF LAKSHADWEEP. 3 B.ABDUL RAZAK, S/O.KUNHI KUNHI M, BAMALI HOUSE, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, KAVARATTI ISLAND, U.T OF LAKSHADWEEP. 4 SHOUKATHALI M.P., S/O.KOYAMMA V, KAVARATTI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, KAVARATTI ISLAND, U.T OF LAKSHADWEEP. 5 P.HAMZAKOYA, S/O.MOHAMMED KOYA K.I, PEECHAYATH HOUSE, KALPENI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, KALPENI ISLAND, U.T OF LAKSHADWEEP.**
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**6 K.K.MOHAMMED JAMALUDHEEN KOYA, S/O.ATTAKOYA C., KUNNAMKULAM HOUSE, KALPENI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, KALPENI ISLAND, U.T OF LAKSHADWEEP.**
**7 N.P.AKBER, S/O.CHERIYA KOYA M.P, NENEPAPPADA HOUSE, KALPENI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, KALPENI ISLAND, U.T OF LAKSHADWEEP.**
**8 T.T.MUJEEBURAHMAN, S/O.IMBICHI KOYA C.N, THITHOTTAM HOUSE, KALPENI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, KALPENI ISLAND, U.T OF LAKSHADWEEP.**
**9 K.O.MOHAMMED RAFI, S/O.KALID K, KAKKACHIYOODA HOUSE, KALPENI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, KALPENI ISLAND, U.T OF LAKSHADWEEP.**
**10 B.IBRAHIM (RETIRED), S/O.ALIEDARUGE, BOUMUDINGE HOUSE, KUDEHI VILLAGE, MINICOY ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, MINICOY ISLAND, U.T OF LAKSHADWEEP.**
**11 K.ALI (RETIRED), S/O.HUSSAIN, KOUNI AMINDATHAGE HOUSE, BADA VILLAGE, MINICOY ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, MINICOY ISLAND, U.T OF LAKSHADWEEP.**
**12 K.C.ABOO SALA, S/O.YOUSEF, KEELA KUNALAM HOUSE, AMINI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, AMINI ISLAND, U.T OF LAKSHADWEEP.**
**13 K.K.ABDUL KADAR, S/O.YOUSEF KEELACHERY, KANJARAKAKKADA HOUSE, AMINI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, AMINI ISLAND, U.T OF LAKSHADWEEP.**
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- **14 K.SAYED SHAIKOYA, S/O.CHERIYA KOYA B.PADIPPURA, KUNAMKALAM HOUSE, AMINI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, AMINI ISLAND, U.T OF LAKSHADWEEP.**
- **15 P.P.ATTAKOYA,**
**S/O.SAYED KOYA THAITHOTTAM, PUTHIYA PADIPPURA HOUSE, AMINI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, AMINI ISLAND, U.T OF LAKSHADWEEP.**
- **16 P.SAINUR ABID, S/O.HAMZA,**
- **PUTHIYAILLAM, POLAKADAM HOUSE, AMINI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, AMINI ISLAND, U.T OF LAKSHADWEEP.**
- **17 M.MUTHUKOYA, S/O.KUNHI V. MADALICHETTA,**
**MANADA HOUSE, AMINI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, AMINI ISLAND, U.T OF LAKSHADWEEP.**
- **18 MOHAMMED IQBAL M.P., S/O.ABDULLA KOYA ASHIYODA, MULLIPALAM HOUSE, CHETHLATH ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, CHETHLATH ISLAND, U.T OF LAKSHADWEEP.**
- **19 MOHAMMED SHAREEF P.O., S/O.SAYED MOHAMMED P.K, PAKKIYODA HOUSE, CHETHLATH ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, CHETHLATH ISLAND, U.T OF LAKSHADWEEP.**
- **20 HASSAN KOYA K.B S/O.KASMI CHERIYAPURA, KUNNALIYODA HOUSE, CHETHLATH ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, CHETHLATH ISLAND, U.T OF LAKSHADWEEP.**
**21 SIJJEEL M., S/O.ABOOBACKER P., MAMMIKKADIYODA HOUSE, AGATTI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, CHETHLATH ISLAND, U.T OF LAKSHADWEEP.**
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**22 MOHAMMED M.C., S/O.ABDUL KADAR K.I, MYDANACHETTA HOUSE, CHETHLATH ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, CHETHLATH ISLAND, U.T OF LAKSHADWEEP.**
- **23 K.M.BADURUDHEEN S/O.A.AHAMMED,**
**KUTTIYA MUKRIYODA HOUSE, AGATTI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, AGATTI ISLAND, U.T OF LAKSHADWEEP.**
**24 B.KASMI, S/O.MOHAMMED, BADATHODA HOUSE, AGATTI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, AGATTI ISLAND, U.T OF LAKSHADWEEP.**
- **25 P.P.AYYOOB, S/O.KOYA,**
## **P.P.AYYOOB,**
**PANDARAPURA HOUSE, AGATTI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, AGATTI ISLAND, U.T OF LAKSHADWEEP.**
**26 K.ALAVI, S/O.KIDAV KOYA, KALKANDIYODA HOUSE, AGATTI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, AGATTI ISLAND, U.T OF LAKSHADWEEP.**
**27 C.KASMI, S/O.SAYED, CHERIYAN KAKKADA HOUSE, AGATTI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, AGATTI ISLAND, U.T OF LAKSHADWEEP.**
**28 T.P.ABDULLA KOYA, S/O.KOHAN KOYA, THEK PUTHIYAILLAM HOUSE, AGATTI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, AGATTI ISLAND, U.T OF LAKSHADWEEP.**
**29 K.K.MOHAMMED KOYA, S/O.SALMI KOYA, KUNNINAMEL HOUSE, AGATTI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, AGATTI ISLAND, U.T OF LAKSHADWEEP.**
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**30**
**K.P.KUNHIKOYA, S/O.A.P.ATTAKOYA, KUNHIPUBAKADA HOUSE, KALPENI ISLAND, R.O. PLANT OPERATOR, SUB DIVISION L.P.W.D, KALPENI ISLAND, U.T OF LAKSHADWEEP.**
**BY ADVS. SRI.N.SUKUMARAN (SR.) SRI.M.P.KRISHNAN NAIR SMT.RAJESWARI KRISHNAN SMT.SEEMA KRISHNAN SRI. KRISHNAN NANDAKUMAR**
## **RESPONDENTS/RESPONDENTS:**
|**1**|**THE ADMINISTRATOR,**|
|---|---|
||**UNION TERRITORY OF LAKSHADWEEP,**|
||**KAVARATTI-682 555.**|
|**2**|**THE SUPERINTENDING ENGINEER,**|
||**LAKSHADWEEP PUBLIC WORKS DEPARTMENT,**|
||**UNION TERRITORY OF LAKSHADWEEP,**|
||**KAVARATTI-682 555.**|
|**3**|**UNION OF INDIA**|
||**REP. BY SECRETARY, MINISTRY OF HOME AFFAIRS,**|
||**NORTH BLOCK, NEW DELHI-110 001.**|
||**R1 BY ADV. SRI.S.RADHAKRISHNAN, SC LAKSHADWEEP ADMN**|
||**R1-R2 BY ADV. SRI.MANU.S, CGC, ADMINISTRATION OF**|
||**THE UNION TERRITORY OF LA**|
||**R3 BY SRI.T.V.VINU, CGC**|
**THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 25-09-2019, THE COURT ON 31-10-2019 DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
## **Dated this the 31st day of October 2019**
## Ashok Menon, J.
The petitioners were employed as Plant Operators in
a desalination plant managed by a company called Titanium Equipment and Anode Manufacturing Company Ltd.
(TEAM Company) under Annexure A1 agreement for the
administration of the Union Territory of Lakshadweep since 1990. The petitioners were sponsored by the
Employment Exchange, Kavaratti vide Annexures RA2 and
RA3. Appointment orders were also issued to the petitioners similar to Annexure A2 which is the
appointment order pertaining to the 14[th] petitioner.
TEAM Company managed the plant with the assistance
of the petitioners. On 02.02.1995 vide Annexure A4 the
Lakshadweep Administration decided to take over the
operation of the plant and machinery from TEAM Company
and directed the Engineers of LPWD in the service to
run the plant utilising the experience of the
petitioners, who were the existing Operators. The
petitioners claimed that they were absorbed or
regularised with effect from the date of taking over
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the plant by the Lakshadweep Administration. It was undertaken that they would be paid salary and rates applicable to NMR Mates. The petitioners would claim that they are entitled to temporary status labourers in terms with O.M.No.51016/2/90-Estt.(c) dated 10.09.1993 of the Government of India, Ministry of PPG&P, New Delhi at Annexure A11, since they possess all the requisite qualifications to be appointed as Operators in the desalination plant.
2. The petitioners approached Central Administrative Tribunal, Ernakulam and filed O.A.No.907/1996, which was disposed vide order dated 12.08.1996 at Annexure A12 directing the respondents herein to examine the matter in detail and pass appropriate orders modifying/clarifying Annexure A7 scheme(Annexure A11 herein), which laid down that those casual workmen who had put in 240 days (206 in case of offices observing five days a week) as on 01.09.1993 will be granted temporary status. However, the respondents did not consider the representations made by the petitioners appropriately.
3. Consequently, the petitioners filed O.A.
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No.617/2011 as well as O.A.No.17/2011 before the Central Administrative Tribunal. Vide order dated 09.10.2012 at Annexure A19, directed the petitioners to make detailed representations to the Secretary, Ministry of Home Affairs, New Delhi with a recommendation of the Administrator, Union Territory of Lakshadweep.
4. The Secretary, Ministry of Home Affairs did not consider the representations made by the petitioners favourably. This resulted in filing of the present O.A.No.724/2013 before the Central Administrative Tribunal.
5. The Tribunal dismissed the application holding that the applicants were in private employment till 1995, and there was nothing to show that they were appointed at rates equivalent to that of NMR Mates,thereafter. The LPWD had taken over the
desalination plant from the private company only in the
year 1995 and they were appointed as daily wagers and therefore, it was held that temporary status as per the scheme of 1993 is not available to the applicants.
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The plea for regularisation cannot succeed, because they were not appointed against any sanctioned posts
nor they were appointed as per the recruitment rules.
6. However, the Tribunal observed that considering the reality that the applicants were working as daily wagers for the last 20 years, the petitioners may present their grievance before the Government of India
so as to have a one-time measure to redress their
grievance. However, it is made clear by the Tribunal that it cannot be treated as a direction of the Tribunal and the O.A. was dismissed with the said
observation.
7. The learned Standing Counsel appearing for the
Lakshadweep Administration would submit that taking the case of the petitioners as a special case would give rise to several other similar contenders seeking regularisation of employment and would have a cascading effect.
8. In the decision _**Union of India (UOI) v. Gagan Kumar, AIR 2005 SC 3107: MANU/SC/042/205**_ it is held
thus:
_“6. Clause 4 of the Scheme is very clear that_
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_the conferment of "temporary" status is to be given to the casual labourers who were in employment as on the date of commencement of the Scheme. Tribunal has taken the view that this is an ongoing scheme and as and when casual labourers complete 240 days of work in a year or 206 days (in case of offices observing 5 days a week), they are entitled to get "temporary" status. We do not think that clause 4 of the Scheme envisages it as an ongoing scheme. In order to acquire "temporary" status, the casual labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of at least one year which means that he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing 5 days a week. From clause 4 of the Scheme, it does not appear to be a general guideline to be applied for the purpose of giving "temporary" status to all the casual workers, as and when they complete one year's continuous service. Of course, it is up to the Union Government to formulate any scheme as and when it is found necessary that the casual labourers are to be given "temporary" status and later they are to be absorbed in Group 'D' posts._
_7. A similar controversy was examined by this Court in Union of India and Anr. v. Mohan Lal and Ors., [2002] 4 SCC 573 and a similar view was expressed in paragraph 6 of the judgment.”_
## 9. The Hon'ble Supreme Court in _**State of Uttaranchal**_
## _**& others v. Sunil Kumar Vaish & others, (2011) 8 SCC**_
## _**670 : MANU/SC/0941/2011**_ held thus:
_“19. A nothing recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance_
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_with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/ reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.”_
## 10. In _**State of Rajasthan & others v. Daya Lal &**_
## _**others, AIR 2011 SC 1193 : MANU/SC/0042/2011**_ , the
Hon'ble Supreme Court has held thus:
_“8. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:_
_(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. xx xx_
_` (ii) xx xx Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.”_
## 11. In _**Nanda Kumar v. State of Bihar & others, AIR**_
_**2015 SC 133: MANU/SC/0148/2014**_ relying on the earlier
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decisions of the Supreme Court in _**Secretary, State of Karnataka v. Umadevi & others, (2006) 4 SCC 1:**_
## _**MANU/SC/1918/2006**_ it was held thus:
_“19. Therefore, considering the facts of the present case, it appears to us that the appellants were never appointed through a proper procedure. It is not in dispute that they all served as daily wagers. Therefore, it was within their knowledge all the consequences of appointment being temporary, they cannot have even a right to invoke the theory of legitimate expectation for being confirmed in the post. Accordingly, we cannot accept the contention of the appellants in the matter. We have further considered the case of the appellants in the light of Section 6of the Repeal Act which has made it clear that the employees of the Board and the appellants cannot be said to be of the same status and cannot enjoy the benefit given under Section 6(i) of the Repeal Act, 2006. Therefore, we are unable to accept the contention that the daily wagers would also come within the meaning of “all officers and employees” as specifically stated in Section 6 of the Repeal Act. In these circumstances, we are unable to accept the submission of learned senior counsel appearing on behalf of the appellants.”_
## 12. In _**Satya Prakash & others v. State of Bihar &**_
## _**others, (2010) 4 SCC 179 :MANU/SC/0176/2010**_ also the
## Hon'ble Supreme Court had discussed _**Umadevi's**_ case
(supra) and held thus:
_“6. We are of the view that the appellants are not entitled to get the benefit of regularization of their services since they were never appointed in any sanctioned posts. Appellants were only engaged on daily wages in the Bihar Intermediate Education Council. In Umadevi's case (supra) this Court held that the Courts are not expected to issue any direction for absorption/regularization or permanent continuance of_
_O.P.(CAT) No.17 of 2016_
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_temporary, contractual, casual, daily-wage or ad hoc employees. This Court held that such directions issued could not be said to be in consistent with the constitutional scheme of public employment. This Court held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. In view of the law laid down by this Court, the directions sought for by the appellants cannot be granted.”_
## 13. In a later decision _**Secretary to Government**_
_**Commercial Taxes and Registration Department, Secratariat & others v. A.Singamuthu, (2017) 4 SCC**_
_**113 : MANU/SC/0235/2017**_ the Hon'ble Supreme Court
observed thus:
_“9. Part-time or casual employment is meant to serve the exigencies of administration. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularisation in service. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and he consciously accepted the same at the time of seeking employment. Generally, while directing that temporary or part-time appointments be regularised or made permanent, the courts are swayed by the long period of service rendered by the employees. However, this may not be always a correct approach to adopt especially when the scheme of regularisation is missing from the rule book and regularisation casts huge financial implications on public exchequer.”_
**==> picture [432 x 12] intentionally omitted <==**
rely on the decision of the Hon'ble Supreme Court in
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## _**U.P.State Electricity Board v. Pooran Chandra Pandey &**_
_**others, (2007) 11 SCC 92**_ , wherein the ratio in
_**Umadevi's**_ case (supra) has been distinguished and it is held that the decision cannot apply in a case where regularisation has been sought for under Article 14 of
the Constitution and it is also observed that _**Umadevi's**_ case cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make _**Umadevi's**_ case inapplicable to the facts of the case.
15. Having gone through the arguments of the
learned Advocate M.P.Krishnan Nair appearing for the
petitioners and Advocate Manu S. appearing for the Lakshadweep Administration, and the plethora of decisions referred to above, were are of the considered view that the petitioners cannot claim the benefit of the scheme of 1993 for regularisation, because during
the implementation of the scheme, they were not working under the Lakshadweep Administration but under a
private company, TEAM Company, which was entrusted as per an agreement to run the desalination plant. The
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scheme makes it adequately clear that it is applicable only to those employees who were in the service of the Central Government as on 01.09.1993. The petitioners worked under TEAM Company and thereafter when the plant was taken over by the Lakshadweep Administration in the
year 1995, they were employed only as daily wagers, and therefore, they were not entitled to claim regularisation as they did not work against any sanctioned post. Sympathy and sentiment cannot definitely work in favour of the petitioners to grant them regularisation by a court of law. Even applying Article 14 of the Constitution scrupulously, the Court
cannot issue direction for regularisation of employees in violation of the constitutional schemes. When there is a process for employment to public services, it has to be scrupulously followed. Back door entries and appointment made in violation of the constitutional schemes cannot be regularised.
16. We are therefore in agreement with the finding of the Tribunal in the impugned order and find no
_O.P.(CAT) No.17 of 2016_
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reason to interfere with it. It is however made clear that the respondent-Government of India has liberty to consider the request and representations made by the petitioners favourably, if it is deemed appropriate to do so.
The Original Petition is dismissed.
**Sd/-**
**V.CHITAMBARESH**
**JUDGE**
**Sd/-**
**ASHOK MENON**
_dkr_
**JUDGE**
_O.P.(CAT) No.17 of 2016_
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 COPY OF THE ORDER DATED 13.08.15 IN OA NO.724/2013. EXHIBIT P2 COPY OF THE OA NO.724/2013. EXHIBIT P3 COPY OF THE TELEGRAM DATED 13.01.98 REGARDING PAY AND ALLOWANCES GIVEN TO THE PETITIONERS. EXHIBIT P4 COPY OF THE LETTER DATED 15.01.13 ISSUED BY THE RESPONDENTS TO THE SECRETARY TO GOVERNMENT. EXHIBIT P5 COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN THE ABOVE OA. EXHIBIT P6 COPY OF THE MISC. APPLICATION FILED BY THE PETITIONERS IN THE OA. EXHIBIT P7 COPY OF THE ORDER DT. 24.09.14 IN MA NO.181/00079/214 IN OA NO.724/2013. EXHIBIT P8 COPY OF THE RA NO.181/00003/15 IN OA NO.724/2013 FILED BY THE PETITIONERS. EXHIBIT P9 COPY OF THE MA NO.181/00110/15 IN RA NO.181/00003/15. EXHIBIT P10 COPY OF THE ORDER DATED 18.12.15 IN RA NO.181/00003/15 AND MA NO.181/00110/15. EXHIBIT P11 COPY OF THE LETTER DATED 05.11.15 ISSUED BY THE LAKSHADWEEP ADMINISTRATION UNDER RTI ACT IN RESPECT OF PAYMENT OF ELECTRICITY CONSUMPTION CHARGES. EXHIBIT P12 COPY OF THE LETTER DATED 06.11.15 ISSUED BY THE JUNIOR ENGINEER, ELECTRICAL SECTION, CHETLET UNDER RTI ACT IN RESPECT OF PAYMENT OF ELECTRICITY CONSUMPTION CHARGES BY ADMINISTRATION. EXHIBIT P13 COPY OF THE LETTER DATED 13.11.15 ISSUED BY THE ASSISTANT ENGINEER, LPWD SUB DIVISION AMINI UNDER RTI ACT IN RESPECT OF PAYMENT OF ELECTRICITY CONSUMPTION CHARGES BY ADMINISTRATION.**