OP(KAT) No. 103 of 2021 (State of Kerala & others v. Damu Pacholangara)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** ## **MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943** ## **OP(KAT) NO. 103 OF 2021** ## **AGAINST THE ORDER IN OA (EKM)NO.67/2016 DATED 11.10.2019 OF KERALA** ## **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/RESPONDENTS IN O.A.:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** - **2 THE DIRECTOR GENERAL OF EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN-695014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, DOWN HILL, MALAPPURAM, PIN-676519.** - **4 THE ASSISTANT EDUCATIONAL OFFICER, TIRURANGADI P.O., TIRURANGADI, MALAPPURAM, PIN-676306.** - **5 THE HEADMASTER, GOVERNMENT WELFARE UPPER PRIMARY SCHOOL, TIRURANGADI P.O., MALAPPURAM, PIN-676306.** **BY GOVERNMENT PLEADER** ## **RESPONDENT/APPLICANT IN O.A.:** **DAMU PACHOLANGARA** **AGED 59 YEARS, S/O.CHATHU, RESIDING AT** **PACHOLANGARA HOUSE, MUTHUVADATHUR, PURAMERI, VADAKARA, KOZHIKODE, PRIMARY DEPARTMENTAL TEACHER, GOVERNMENT WELFARE UPPER PRIMARY SCHOOL, TIRURANGADI, TRIKKULAM, MALAPPURAM DISTRICT, PIN-676306.** **BY ADVS.** **V.A.MUHAMMED** **V.RAJASEKHARAN NAIR** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT) No. 103 of 2021 2 ## **ALEXANDER THOMAS & A. BADHARUDEEN, JJ.** **------------------------------------------------------------------** O.P (KAT) No.103 of 2021 [ _arising out of the impugned order dated 11.10.2019 in O.A.(Ekm) No.67/2016 on the file of the KAT, TVM Bench_ ] **------------------------------------------------------** Dated this the 12[th] day of July, 2021 ## **JUDGMENT** ## **Alexander Thomas, J.** The prayers in the aforecaptioned original petition filed by the State of Kerala and the departmental authorities concerned, under Articles 226 & 227 of the Constitution of India are as follows (see page No.11 of the paper book of this O.P.):- _**“1. To set aside the Exhibit P3 Impugned Order of the Kerala Administrative Tribunal in O.A. (EKM) 67/2016.**_ _**2. To dismiss the Exhibit P1 Original Application No.(EKM) No.67/2016 filed by the Respondent before the Kerala Administrative Tribunal, holding that the Respondent is eligible for any of the reliefs claimed in the Exhibit P1 Original Application.**_ _**3. To declare that Annexure A11 Order is not applicable to those who are Government School Service having prior Aided School Service and is only applicable to only those who are in Aided School Service in the matter of those who are in Government Service.**_ OP(KAT) No. 103 of 2021 3 ## _**Any other order or direction as this Tribunal may deem fit and proper in the facts and circumstances of the case.”**_ 2. Heard Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the petitioners herein/respondents in the O.A. and Sri.V.A. Muhammed, learned counsel appearing for the respondent herein/sole applicant in the O.A. before the Tribunal. 3. The prayers in the instant Ext.P1 original application, O.A. (Ekm) No.67/2016, filed by the respondent herein before the Kerala Administrative Tribunal are as follows (see page Nos.27 & 28 of this paper book):- _**“(i) call for the records relating to Annexures A-3, A-7, P-13 and A-14 orders and set aside the same.**_ _**(ii) declare that the Applicant is entitled to reckon his previous service from 20.7.1987 to 29.3.1994 for granting his higher grade.**_ _**(iii) issue direction to the Respondents to grant all pensionary benefits on the basis of the revised higher grade reckoning his previous service from 20.07.1987 to 29.3.1994.**_ _**(iv) pass such other order or direction which this Hon'ble Tribunal may deem fit and proper to grant in the circumstances of the case.”**_ 4. The Tribunal, after hearing both sides, has rendered the impugned Ext.P3 final order dated 11.10.2019 in O.A. (Ekm) No.67/2016 wherein it has been categorically found that the OP(KAT) No. 103 of 2021 4 rejection of the claim of the applicant by the Director of Public Instruction (DPI) and the State Government as per Anxs.A13 & A14 rejection orders are plainly untenable and would go against the concluded findings of the Tribunal in the previous round of litigation initiated by the party, which culminated in Anx.A12 final order dated 26.02.2014 of the Tribunal in O.A. No.1620/2013, wherein the Tribunal has conclusively found that the case of the applicant is squarely covered by the provisions contained in paragraph No.2 of G.O.(MS) No.190/74/G.Edn. dated 30.09.1974 (Anx.A11 therein/Anx.A11 herein) and the contra finding of the DPI and the Government in the abovesaid rejection orders as if the said Anx.A11 G.O. will not apply in the instant case is plainly illegal and unreasonable and accordingly the rejection orders were quashed and the matter remitted by the Tribunal to the DPI for passing fresh orders strictly in terms of the previous verdict of the Tribunal at Anx.A12, in the matter of claiming the aided school service of the applicant along with his regular school service for the purpose of consideration of grant of higher grade. It is this order at Ext.P3 rendered by the Tribunal that is under challenge in this O.P. OP(KAT) No. 103 of 2021 5 5. The facts in this case are not under any serious dispute. It is common ground that the original applicant had prior approved service as a Primary School Teacher in an aided school for the period from 20.07.1987 to 29.03.1994. Later, due to reduction of posts in the staff fixation process, the original applicant was thrown out and retrenched from service on 29.03.1994. Later the applicant had applied for selection and appointment as Primary Departmental Teacher in Government School service through the Public Service Commission and pursuant to the said selection process he was selected and appointed to regular government school service as a PD Teacher and he had entered service as Primary Departmental Teacher in Government school service on 04.08.1999. 6. The case of the applicant is that in view of the provisions contained in Anx.A10 G.O.(MS) No.62/73/S.Edn. dated 02.05.1973 and more particularly by Anx.A11 G.O.(MS) No.190/74/G.Edn. dated 30.09.1974, the prior approved aided school service of the applicant of more than 6 years for the period from 20.07.1987 to 29.03.1994, is to be reckoned for the purpose of counting his higher grade as PD Teacher in Government school service. OP(KAT) No. 103 of 2021 6 7. The abovesaid plea of the applicant was initially rejected by the DPI, which compelled the applicant to approach the Tribunal on a previous occasion which led to Anx.A12 final order dated 26.02.2014 rendered by the Tribunal in O.A.(Ekm) No.1620/2013, filed by the respondent herein. It will be pertinent to refer to paragraphs 5 & 6 of Anx.A12 final order of the Tribunal in O.A. (Ekm) No.1620/2013, which read as follows (see page Nos.50 to 52 of this paper book):- _**“5. We notice that the GO relied on by the Government to decline the claim of the applicant is Annexure A6. That is G.O.(Ms) No.463/68/Edn. dated 26.10.1968. Paragraph 7 under the heading Aided school teachers which was relied on by the Government against the applicant reads as follows:**_ _“7. Condonation of broken periods for computing total period of service will not be allowed. But hard cases of breaks for a period of less than one year at a time can be considered on merits. Government sanction should be obtained for condonation of breaks in each case.”_ _**Paragraph (viii) of Annexure A10 dated 2.5.1973 deals with reckoning of past service for grant of higher grade. But it appears that it has been granted as a one time concession to the cases which arose after 1[st] January, 1973. The relevant portion of the said GO reads as follows:**_ _“(viii) Reckoning service for grant of higher grade_ _In lieu of continuous teaching service insisted_ OP(KAT) No. 103 of 2021 7 _on for the purposes of sanction of higher grade to teachers, total teaching service will count for higher grade to teachers. This concession shall take effect only from 1[st] January 1973. Arrears will also be given with effect from 1[st] January 1973.”_ ## _**Superseding the conditions contained in the above quoted GO, the Government issued Annexure A11 GO. Paragraph 2 of the said order reads as follows:**_ _“2. Government are now pleased to order that when a break is less than 5 years, the Controlling Officers can ignore it and take the aggregate service for sanctioning higher grade. If the break in service exceeds 5 years it shall be reported to the Director of Public Instruction. No condonation of break is necessary in such cases. The Director of Public Instruction can take a decision regarding the counting of service before the break for sanctioning higher grade without any consideration of condoning the break or without referring to Government.”_ _**The case of the applicant is covered by the above quoted paragraph 2 of Annexure A11 order dated 30.9.1974. The said paragraph provides that if the break of service exceeds five years it shall be reported to the DPI. The DPI can take a decision regarding the counting of service before the break for sanction of higher grade without any consideration of condoning the break and without referring to the Government. So, the DPI could have allowed the request of the applicant to count his past service without referring to the Government and without the requirement to condone the break. The DPI as well as the Government took the decision based on the 1968 GO (Annexure A6) without noticing the improvements made by the Government to the said GO by subsequent orders. So, the impugned orders are vitiated for not taking into account the relevant matters. Therefore, it is unreasonable in the Wednesbury sense. Accordingly, Annexures**_ OP(KAT) No. 103 of 2021 8 _**A3 and A7 are quashed. The second respondent Director of Public Instruction is directed to reconsider the claim of the applicant in the light of paragraph 2 of Annexure A11 order (G.O.(Ms) No.190/7444/G.Edn. dated 30.9.1974).**_ _**6. Prima facie, paragraph 2 of the above G.O. is only an enabling provision. In other words, it is a power conferred on the DPI to reckon past service even if the break of service is more than five years. But the power under the above paragraph of Annexure A11 is "a power coupled with a duty, which has to be exercised when circumstances warranting exercise of that power are shown to exist and an interested person makes an application for the same. See the decisions of the Apex Court in**_ **Commissioner of Police, Bombay** v. **Gordhandas Bhanji** (AIR 1952 SC 16) **and Hirday Narain** v. **Income Tax Officer, Barelilly** (AIR 1971 SC 33). Expatiating on the concept of power coupled with duty, the Hon'ble Supreme Court in the latter decision held as follows: _“If a statute invests a public Officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right -public or private- of a citizen. In Julius v. Bishop of Oxford ((1880) 5 A.C. 214) it was observed by Cairns, L.C., at pp.222-223 that the words “it shall be lawful” conferred a faculty or power, and they did not of themselves do more than confer a faculty or power. But there may be some-thing in the nature of the thing empowered to be done, some-thing in the object for which it is to be done, some-thing in the conditions under which it is to be done, something in the title of the persons for whose_ OP(KAT) No. 103 of 2021 9 _benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is -reposed to exercise that power when called upon to do so.” Lord Blackburn observed in the same case at pp.244-245 that the enabling words give, a power which prima facie might be exercised or not, but if the object for which the power is conferred is for the purpose of effectuating a right there may be a duty cast upon the donee of the power to exercise it for the benefit of those who have that right when required on their behalf.”_ _**In the light of the above principles laid down by the Apex Court, even if paragaraph 2 of Annexure A11 may, prima facie, appear to be an enabling provision, the power under it has to be exercised, as it is a provision conferred for the benefit of Government school teachers who have aided school service in the past. When an interested person like the applicant calls upon the DPI to exercise that power, the DPI has to do that. So, the second respondent shall reconsider the claim of the applicant as directed above, within two months from the date of receipt of a copy of this order after affording an opportunity of being heard to the applicant.”**_ 8. It is common ground that Anx.A12 order of the Tribunal has become final and conclusive between the parties and the same has not been reversed or altered in the manner known to law. The State and departmental authorities concerned have not filed any review petition to challenge Anx.A12 order and they also have not filed any original petition before this Court so to challenge Anx.A12 final order. Therefore the findings made by the Tribunal in Anx.A12 order to the effect that the case of the OP(KAT) No. 103 of 2021 10 applicant is covered by paragraph No.2 of G.O.(MS) No.190/74/G.Edn. dated 30.09.1974 (Anx.A11 therein/Anx.A11 herein) has become final and conclusive. 9. Now the DPI has rejected the claim of the applicant as per Anx.A13 dated 31.05.1974 on the species ground that Anx.A11 G.O. will not apply in the case of the applicant as it would apply only in the case of aided school teachers and not in the case of a Government school teacher like the applicant. Being aggrieved by Anx.A13 the applicant had approached the Government who had also rejected the case of the applicant as per Anx.A14 G.O.(Rt) No.5374/2015/G.Edn. dated 16.11.2015 on the ground that as per G.O.(MS) No.67/69/G.Edn. dated 05.02.1969 (Anx.A8 herein), the past approved aided school service can be counted only if the break in service is upto one year and that in the instant case the break in service is about 5 ½ years. In other words, Government has a taken a different ground stating that the G.O. that is applicable in the case of the applicant is Anx.A8 G.O. dated 05.02.1969 and thereby implying that Anx.A11 G.O. will not apply in the case of the applicant. 10. So it can be seen that both the DPI and the State Government has rejected the case of the applicant on grounds OP(KAT) No. 103 of 2021 11 which go contrary to the concluded findings of the Tribunal in Anx.A12 wherein it has been held that the case of the applicant is squarely covered by paragraph No.2 of Anx.A11 G.O. dated 30.09.1974 and that his case is to be considered strictly in accordance with that norms. So it can be seen that the view rendered by the Tribunal in the present Ext.P3 final order dated 11.10.2019 in O.A.(Ekm) No.67/2016 that the rejection order is plainly illegal and would go contrary to the previous verdict of the Tribunal at Anx.A12, cannot be faulted with. 11. All what the Tribunal has held as per Ext.P3 is that in view of the concluded verdict of the Tribunal at Anx.A12, which has become final and conclusive, the case of the applicant that it could be reconsidered by the DPI strictly in accordance with the parameters in paragraph No.2 of Anx.A11 G.O. dated 30.09.1974 and orders in that regard may be passed within 2 months. 12. Now a new ground is taken-up by the petitioners in the present O.P. which has not been raised by them before the Tribunal either in the previous round of litigation which concluded in Anx.A12 or in the present round of litigation which culminated in Ext.P3. The said ground is that since the break in service of the applicant is about 5 ½ years, his case cannot be OP(KAT) No. 103 of 2021 12 granted in view of the provisions contained in Ext.P4 G.O.(MS) No.122/86/G.Edn. dated 17.07.1986 issued by the State Government. 13. At the outset it has to be held that such a contention if assumed to be a tenable one should have been raised by the department, before the Tribunal, in the previous round of litigation. Such a ground was never raised by the department before rendering of the previous verdict at Anx.A12 which has become final and conclusive. 14. If at all the department had any grievance that the matter in relation to Ext.P4 G.O. was relevant then they should have either filed a review petition before the Tribunal as against Anx.A12 or should have challenged Anx.A12 by filing original petition under Articles 226 & 227 of the Constitution of India before this Court. Those options have not been pursued by the departmental authorities concerned and hence it is only to be held that the said new contention cannot be raised by the petitioners at this stage. Moreover, such a ground has not been raised even before the rendering of the present verdict of the Tribunal at Ext.P3. OP(KAT) No. 103 of 2021 13 15. However, we have examined the said contention of the petitioners based on Ext.P4 G.O. 16. For that purpose the provisions contained in Ext.P4 G.O. dated 17.07.1986 cannot be read in isolation and has to be read in the context of the previous norms of the Government at Anxs.A6, A8, A9 & A10 . 17. The conditions for giving higher scale of pay to Government school teachers are dealt with in the 2[nd] paragraph of Anx.A6 G.O.(MS) No.463/68/G.Edn. dated 26.10.1968. Therein it is stated that approved service in aided school will be counted for the purpose of sanctioning higher grade of pay on the condition that service should be approved and continuous and there should not be a break of more than one month between leaving the service of aided school and joining service in Government school and that resignation for this purpose will be overlooked, etc. 18. Later, the Government has issued Anx.A8 G.O.(MS) No.67/69/G.Edn. dated 05.02.1969. Though it is not exclusively stated in Anx.A6 G.O. dated 26.10.1968 as to the contingencies in which the above referred provisions therein would apply, a reading of Anx.A6 G.O. will give an impression as if the break in OP(KAT) No. 103 of 2021 14 service could be on account of contingencies like resignation and it could be even contingencies other than resignation. However, there is no explicit provisions in Anx.A6 in that regard. But in the subsequent G.O. dated 05.02.1969 at Anx.A8, the Government has clarified that the break in service of aided school teachers may be on account of various reasons like (1) resignation for joining in new schools (2) absence of vacancy (3) relief on closing date due to inadequate service for retention during vacation (4) absence for a period and for which no eligibility was available (5) withdrawal of recognition of schools (6) closure of schools (7) want of fitness certificate for temporary school buildings (8) disqualification of management (9) management disputes, etc. So, the said Anx.A8 G.O. dated 05.02.1969 would make it clear that the break in service in the aided school service could occur not only on account of resignation but also on account of other reasons like absence of vacancy/abolition of post and the other contingencies mentioned therein. In the final paragraph of Anx.A8 G.O. it is stated about the number of years of aggregate service prior to the date of commencement of continued service and the maximum period of break to be condoned, etc. The said provision in Anx.A8 would make it clear that for teachers with 6 years or more years of OP(KAT) No. 103 of 2021 15 service, the maximum period of break to be condoned could be only upto one year. However, in the next paragraph it is stated therein that in the case of teachers with 6 years or more years of prior service, break of service for more than a year may be condoned based on the merits of each case and such case will be referred to the Government, etc. 19. Later by Anx.A9 G.O. dated 01.07.1969 it has been clarified that the benefit of Anx.A8 G.O. dated 05.02.1969 would apply both in the case of both aided school teachers as well as Government school teachers. 20. The abovesaid norms at Anx.A8 etc., has been subsequently varied by Anx.A10 G.O.(MS) No.62/73/S.Edn. dated 02.05.1973 and Clause (viii) of the said G.O. dated 02.05.1973 reads as follows (see page No.43 of the paper book):- _**“(viii) Reckoning of service for grant of higher grade**_ _**In lieu of continuous teaching service insisted on for the purposes of sanction of higher grade to teachers, total teaching service will count for higher grade to teachers. This concession shall take effect only from 1[st] January 1973. Arrears will also be given with effect from 1[st] January 1973.**_ _**All types of service which are even now considered for higher grade will continue to be considered for the purpose. However, breaks in service exceeding 5 years will be reported to the Director of Public Instruction for**_ OP(KAT) No. 103 of 2021 16 _**consideration of the service before the break. Requests for condonation of break under the existing rules to enable teachers to get the higher grade earlier than 1[st] January 1973 which are pending with the Department and Government will continue to be considered and sanctioned under the existing rules. Future requests for condonation will not however be entertained.**_ _**The question of counting the training period for increment to teachers is under examination of Government.”**_ So, it can be seen from Clause 8 of Anx.A10 G.O. dated 02.05.1973 that all kinds of service which are now considered for higher grade will continue to be considered for the said purpose and breaks in service even exceeding 5 years should be reported to the DPI for consideration of service before the break and request for condonation of break under the existing Rules to enable teachers to get the higher grade earlier than 1[st] January, 1973 which are pending with the department and the Government will continued to be considered and sanctioned under the existing Rules and that future request for condonation will not, however, be entertained. 21. Subsequently the norms in Anx.A10 G.O. dated 02.05.1973 has again been varied by the issuance of Anx.A11 G.O. (MS) No.190/74/G.Edn. dated 30.09.1974 and the contents of the said G.O. read as follows:- OP(KAT) No. 103 of 2021 17 _**“In the G.O. cited, it was ordered among other things that in lieu of continuous teaching service insisted on for the purpose of sanction of higher grade to teachers, total teaching service would count for higher grade. It was also ordered therein that breaks in service exceeding 5 years would be reported to the Director of Public Instruction for consideration of service before the break and that requests for condonation of break under the existing rules to enable teachers to get higher grade earlier than 1[st] January 1973 which were pending with the department and Government and would continue to be considered and sanctioned under the existing rules.**_ _**2. Government are now pleased to order that when a break is less than 5 years, the Controlling Officers can ignore it and take the aggregate service for sanctioning higher grade. If the break in service exceeds 5 years it shall be reported to the Director of Public Instruction. No condonation of break is necessary in such cases. The Director of Public Instruction can take a decision regarding the counting of service before the break for sanctioning higher grade without any consideration of condoning the break or without referring to Government.”**_ Thus it can be seen from a reading of Anx.A11 that on and with effect from 01.01.1973, where a break in service is less than 5 years, the controlling officer can ignore it and take the aggregate service for sanctioning higher grade. But, if the break in service exceeds 5 years, it shall be reported to the DPI and no condonation of break is necessary in such cases and DPI can take a decision regarding counting of service before the break for sanctioning higher grade without any consideration of condoning OP(KAT) No. 103 of 2021 18 the break or without referring to Government, etc. 22. It is thereafter that Ext.P4 G.O.(MS) No.122/86/G.Edn. dated 17.07.1986 has been issued and paragraphs 8 & 9 thereof reads as follows:- _**“8. “Government may clarify that the orders issued in the Government letter No.34912/J3/76/G.Edn. dt. 13-9-1976 and letter No.77712/J1/77/G.Edn/79 dated 18-1-1979 are not binding on the teachers in Government schools as well as in aided school who have been sanctioned higher grade counting their pre-resignation service for taking up appointment in a Government School a aided school as the case may be subject to the condition that there should not be break for more than a month between leaving the service of aided School and joining service in Government School or leaving the service of Government School/Local Body School and joining service in aided school in terms G.O. (Ms) No.463/63/Edn. dated 26-10-1968 or between leaving the service from aided school and joining service from aided school in terms of G.O.Ms.47/71 S.Edn. date 21-4-1971 overlooking their resignation for this purpose.”**_ _**9. The Government have considered the recommendation made by the committee in this regard. They accept the recommendation of the committee for clearance of audit objections and order accordingly. However the Director of Public Instruction will report to Government individual cases of sanction of higher grade and matters relating thereto based on the above clarification, for appropriate orders.”**_ 23. So, it can be seen from a reading of the abovesaid norms that the break in service would occur on account of various OP(KAT) No. 103 of 2021 19 contingencies and it is not confined in the cases of resignation from an aided school but can occur even due to other reasons like absence of vacancies/abolition of posts and the other contingencies mentioned hereinabove. Resignation from service ordinarily entail forfeiture of past service. It is only in the case of break in service as occurred on account of resignation from the aided school that paragraphs 8 & 9 of Ext.P4 G.O. dated 17.07.1986 would apply, i.e., in other words the condition that the break in service shall not exceed one month as stipulated in paragraphs 8 & 9 of Ext.P4 G.O. dated 17.07.1986 would apply only in a case where the break in service has occurred on account of resignation from the aided school service and in such a case the break in service on account of resignation shall not exceed one month. So the condition that the break in service shall not exceed one month which is applicable only in the case of resignation, will not apply in the instant case inasmuch as the break in service of the original applicant has occurred not on account of his voluntary resignation but on account of him being retrenched and thrown out from service for want of vacancies/absence of vacancies in the aided school. So the said restriction in Ext.P4 G.O. would not apply in the instant case. So, the Tribunal was fully right both in OP(KAT) No. 103 of 2021 20 Anx.A12 as well as in Ext.P3 in holding that the case of the applicant would squarely covered by the provisions contained in paragraph No.2 of Anx.A11 G.O. dated 02.05.1973. The contra grounds of rejection made out by the DPI and the Government in Anxs.A13 & A14 rejection orders, as if the said Anx.A10 G.O. will not apply in the applicant's case are absolutely illegal and would go against the concluded findings of the Tribunal and is even otherwise against the norms issued by the Government. So, the Tribunal was fully right in rendering the impugned final order at Ext.P3 in this case. No interference is called for in the facts and circumstances of this case. 24. The learned Senior Government Pleader has also raised a contention based on the judgment of the Division Bench of this Court rendered in _**State of Kerala** V_ _**. Victoria**_ [2018 (4) KLT 325]. The said verdict of the Division Bench in **Victoria** 's case ( _supra_ ) was rendered in the context of Ext.P4 G.O. in a case where the incumbent had previously resigned from his aided school service. It was in that context that the Division Bench of this Court has held in **Victoria** 's case ( _supra_ ) that in view of G.O. (MS) No.122/86/G.Edn. dated 17.07.1986 (Ext.P4 herein), the incumbent can get the benefit of counting the previous aided OP(KAT) No. 103 of 2021 21 school service only if the break in service on account of resignation of service is up to one month and not exceeding one month. The said order of the Division Bench will not apply in the instant case as the break in service has occurred in this case not on account of voluntary resignation from service but on account of being retrenched and thrown out from service for want of vacancies. 25. That apart, Sri.V.A. Muhammed, learned counsel appearing for the original applicant/respondent herein has also pointed out that in the case of an incumbent, who is almost identically situated as the present original applicant, the DPI has already granted the benefit in terms of Anx.A11 G.O. as per Anx.A16 proceedings No.R3/54167/2010/DPI dated 07.04.2011 and also taking note of the proceedings of the DPI at Anx.A16 dated 07.04.2011. 26. However, in view of the long pendency of the matter and in view of the fact that the time limit for compliance of the directions issued by the Tribunal has expired quite sometime ago and as presently it is the second round of litigative proceedings, it is ordered that the Director of Public Instructions/Director General of Education will immediately comply with the directions OP(KAT) No. 103 of 2021 22 of the Tribunal at Ext.P3 within 6 weeks from the date of production of a certified copy of this judgment. 27. The applicant's counsel shall produce certified copy of this judgment before the Director of Public Instructions/Director General of Education for necessary information and compliance, immediately. With these observations and directions, the above original petition will stand dismissed. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **A. BADHARUDEEN, JUDGE** Skk//26062021 OP(KAT) No. 103 of 2021 23 ## **APPENDIX OF OP(KAT) 103/2021** ## **' - PETITIONERS ANNEXURE:** ## **EXHIBIT P1** **TRUE COPY OF THE O.A.NO.(EKM)67/16 ALONG WITH ANNEXURES BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** **ANNEXURE A1 TRUE COPY OF THE SERVICE CERTIFICATE OF THE APPLICANT.** - **ANNEXURE A2 TRUE COPY OF THE PETITION SUBMITTED BEFORE THE DIRECTOR DATED NIL.** - **ANNEXURE A3 TRUE COPY OF ORDER OF THE DIRECTOR DATED 23.6.2004.** - **ANNEXURE A4 TRUE COPY OF ORDER OF THE GOVERNMENT DATED 18.4.2000.** **ANNEXURE A5 TRUE COPY OF REQUEST OF THE APPLICANT DATED 17.4.2012.** **ANNEXURE A6 TRUE COPY OF THE GO(MS) NO.463/68/EDN. DATED 26.10.1968 OF THE GOVERNMENT** - **ANNEXURE A7 TRUE COPY OF THE GOVERNMENT LETTER NO.70512/B1/2012/G.EDN. DATED 15.02.2013** **ANNEXURE A8 TRUE COPY OF THE GO(MS) NO.67/698/EDN. DATED 05.02.1969 OF THE GOVERNMENT** - **ANNEXURE A9 TRUE COPY OF THE G.O.(MS) NO.272/69/EDN. DATED 01.07.1969 OF THE GOVERNMENT** **ANNEXURE A10 TRUE COPY OF GO(MS) NO.62/73/S.EDN. DATED 02.05.1973 OF THE GOVERNMENT** **ANNEXURE A11 TRUE COPY OF GO(MS) NO.190/74/G.EDN. DATED 30.09.1974 OF THE GOVERNMENT** **ANNEXURE A12 TRUE COPY OF THE ORDER IN OA NO.1620/2013 DATED 26.02.2014** OP(KAT) No. 103 of 2021 24 - **ANNEXURE A13 TRUE COPY OF ORDER NO.R3/58739/2013/DPI DATED 31.05.2014 OF THE 2ND RESPONDENT** **ANNEXURE A14** - **TRUE COPY OF GO(RT) NO.5374/2015/G.EDN. DATED 16.11.2015 OF THE GOVERNMENT** **ANNEXURE A15 TRUE COPY OF GO(P) NO.412/97/G.EDN. DATED 16.10.1997 OF THE GOVERNMENT** - **ANNEXURE A16 TRUE COPY OF THE DIRECTOR OF PUBLIC INSTRUCTION DATED 07.04.2011.** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE FIRST PETITIONER ON 8.3.2018.** - **EXHIBIT P3 TRUE COPY OF THE IMPUGNED ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 11.10.2019 IN THE ORIGINAL APPLICATION.** - **EXHIBIT P4 TRUE COPY OF THE G.O.(MS) NO.122/86/G.EDN. DATED 17/07/1986 ISSUED BY THE GENERAL EDUCATION (J) DEPARTMENT.**