JUDGMENT : MURALEE KRISHNA S., J. 1. This original petition is filed under Article 227 of the Constitution of India by the applicant in O.A.(EKM)No.79 of 2020 on the file of the Kerala Administrative Tribunal, (Additional Bench at Ernakulam), (‘the Tribunal’ in short), challenging the order dated 04.03.2025 passed by the Tribunal in that original application. 2. The petitioner joined service as Office Assistant under the Co-operative Academy of Professional Education (‘CAPE’ for short), as per Annexure A1 order dated 02.12.2002 issued by the CAPE, pursuant to a duly conducted selection procedure. After successfully passing the Account Test, he was promoted to the post of Assistant Grade-I, with effect from 16.12.2008, as per Annexure A2 order dated 30.06.2010. The petitioner obtained B.Com. degree from Calicut University and Master of Business Administration (MBA) from Mahatma Gandhi University, and was issued with the certificate of Bachelor of Commerce dated26.03.1999 and MBA certificate dated 02.06.2009. While he was working as Office Assistant Grade I, CAPE issued Annexure A5 notification dated 20.01.2011, calling for applications to fill up the vacancies in the posts of Administrative Officer, Finance Officer, Secretary Co-operative Hospital and Special Officer (Employment and Training) (‘the Special Officer’ in short). On the basis of ranking in Annexure A6, select list, the petitioner was appointed as Special Officer on contract basis with the stipulation that the petitioner’s service would be regularised based on the work, conduct and performance during the period of training and up on successful completion of training. After joining the post of Special Officer, the petitioner noted discrepancies crept in Annexure A7 appointment order, which differs from that notified by Annexure A5 notification. Therefore, the petitioner approached the CAPE for redressal of his grievances by submitting Annexure A8 representation dated 27.06.2011. That representation was forwarded to the CAPE through the Medical Director, Co-operative Medical College, Kalamassery, with a recommendation note by placing reliance on G.O(P)No.443/92/Fin. dated 01.07.1992, by which the Government has permitted to allow the pay and allowances for appointment through direct recruitment, from among those in service during the pre-service Training period drawn from them in earlier post if it is higher than the minimum of the scale of pay of the post to which they are recruited directly. 2.1. dated 01.07.1992, by which the Government has permitted to allow the pay and allowances for appointment through direct recruitment, from among those in service during the pre-service Training period drawn from them in earlier post if it is higher than the minimum of the scale of pay of the post to which they are recruited directly. 2.1. After submitting many representations, the Medical Director issued Annexure A11 order dated 01.2012 with regard to the distribution/ redistribution of works of each seat/duty specified therein and also those of the office trainees, including the petitioner. Later, by Annexure A12 order dated 23.08.2012, the petitioner was given appointment as Special Officer on a regular basis in the pay scale of Rs.18410-30550. Thereafter, the petitioner was assigned the duties of Finance Officer, with effect from 22.11.2012, by Annexure A13 order dated 15.01.2013 of the CAPE in the pay scale of Rs.18740-33680. 2.2. The petitioner contends that the pay scale fixed by Annexure A13 order is the same pay scale applicable to the post of Senior Superintendent in the Kerala Government Service. While the petitioner was continuing in the post of Special Officer, the Co- operative Medical College was taken under the control of the Medical Education Department by the Government, as per Annexure A14 Order dated 17.12.2013. The Committee formed by the Government for finalising the modalities of taking over the employees of the Medical College, recommended the Government to keep the Institution as a “Stand Alone Unit” and to absorb the eligible regular employees to the Medical Education Service in a phased manner. Thereafter, when 148 posts of Teaching Staff and 202 posts of Non-Teaching Staff were created as per Annexure A15 order dated 27.01.2015, posts of Ministerial staff were not created. The petitioner successfully completed his period of probation in the post of Special Officer, and by Annexure A16 proceedings dated 27.02.2016, the petitioner’s probation was declared with effect from 27.08.2014. But in Annexure A16 order, it was ordered that since the post of Special Officer is available only under CAPE and no such post is available in the Government Service, the petitioner’s absorption to the Government Service would be subject to the orders of the 1 st respondent and the Director of Medical Education. In the meanwhile, a third party raised objection to the petitioner holding the post of Finance Officer without the requisite qualification. In the meanwhile, a third party raised objection to the petitioner holding the post of Finance Officer without the requisite qualification. Therefore, by Annexure A17 letter dated 16.02.2016, the Director of Medical Education directed the 3 rd respondent to produce the petitioner’s M.Com. certificate. In response to Annexure A17 letter, the 3 rd respondent replied that the petitioner has MBA qualification, which is one of the qualifications prescribed as per Annexure A5 notification dated21.03.2016. 2.3. The 1 st respondent issued Annexure A19 order dated04.03.2016, sanctioning posts of Office Staff (Ministerial Staff) to the Medical College. But no post of Special Officer was sanctioned in Annexure A19, and instead, the Government created two posts of Senior Superintendent with the same scale of pay as that of the post of Special Officer. According to the petitioner, out of the said two posts, one post was sanctioned for accommodating him. But later, the 1 st respondent issued Annexure A20 order dated 11.01.2019 directing to accommodate the petitioner as Upper Division Clerk (UDC) with effect from 17.12.2013. The 1 st respondent took that decision on the recommendation made by the 2 nd respondent in this regard by downgrading 2 posts of Senior Superintendent as UD Clerk, and 2 posts of UD Clerk as LD Clerk, vide Annexure A20 order by overlooking the recommendation of a higher committee constituted by the 1 st respondent itself earlier. The petitioner claims that while directing down gradation of post of Special Officer on the ground that there was no such post in Medical Education Service, the Government had, as per Annexure A21 order dated 29.01.2019 allowed the Assistant Engineers (Civil and Electrical) to continue in the same post, though those post were also not available in the Medical Education service, by treating the same as vanishing category. Though the petitioner submitted Annexure A22 representation dated 04.02.2019, there was no positive action from the part of the Government and hence the petitioner filed O.A.(EKM)No.742 of 2019 before the Tribunal challenging Annexure A20 and Annexure A21 orders. By Annexure A23 order dated 12.04.2019, the Tribunal disposed of the said O.A., directing the 1 st respondent to consider and pass orders on Annexure A22 representation within a period of three months, after giving an opportunity of hearing to the petitioner. By Annexure A23 order dated 12.04.2019, the Tribunal disposed of the said O.A., directing the 1 st respondent to consider and pass orders on Annexure A22 representation within a period of three months, after giving an opportunity of hearing to the petitioner. Pursuant to the said order, though a hearing was conducted by the 1 st respondent on 06.06.2019, by Annexure A24 order dated 04.10.2019, the representation of the petitioner was rejected. Therefore, challenging Annexure A24 order, the petitioner approached the Tribunal with the present O.A. filed under Section19 of the Administrative Tribunals Act, 1985 , seeking the following reliefs: “(a) To call for the records leading to the issuance of Annexure A24 order issued by the 1 st respondent dated 04.10.2019 and to set aside the same. (b) To declare that Annexure A20 Government Order is arbitrary discriminatory and has deviated from (Annexure A19) the original order issued by the 1 st respondent that too without assigning any cogent reason. (c) To declare that applicant is entitled for retention in the post of Special Officer (Employment & Training) by treating the same as a vanishing post as was done in the case of Assistant Engineer (Civil & Electrical) CAPE at the time integration with the Medial Education Department. (d) To restrain the respondents from refixing the salary of the applicant to the scale of UD Clerk before a decision is taken by this Hon’ble Tribunal in the above Original Application. (e) To direct the respondents 1 to 3 to re-designated the applicant as Senior Superintendent, without hindering the promotion prospects of other Senior Superintendents working under the 2 nd respondent as done in the case of Associate Professors and Professors of Cochin Medical College vide Annexure A26 order, in the interest of justice.” 3. In the original application, the 3 rd respondent filed a reply statement dated 04.08.2022. The 2 nd respondent filed a reply statement dated 15.03.2023, producing therewith Annexures R2(a) to R2(h) documents. 4. After hearing both sides and on appreciation of materials on record, the Tribunal dismissed the original application by the impugned order dated 04.03.2025. Paragraph 12 of that order reads thus: “12. The applicant’s claim is that he was retained in the post of Senior Superintendent. There is no provision for direct recruitment to the post of Senior Superintendent in the ministerial service in the Medical Education Service. Paragraph 12 of that order reads thus: “12. The applicant’s claim is that he was retained in the post of Senior Superintendent. There is no provision for direct recruitment to the post of Senior Superintendent in the ministerial service in the Medical Education Service. The respondents have stated that the applicant’s initial appointment was as a Last Grade Employee. In Annexure A17 letter dated 11.01.2019 Government found that in order to accommodate all employees, it was necessary to down-grade the post of Senior Superintendent and Upper Division Clerk to that Lower Division Clerk. Even that order does not give any indication that the applicant was either accommodated or proposed to be accommodated in the post of Senior Superintendent. The applicant cannot have any rightful claim to be accommodated in the post of Senior Superintendent, in the absence of any material to substantiate that he was accommodated in such post. It cannot be said that the post of Senior Superintendent is one equivalent to the post which was held by the applicant. Moreover, there is no direct recruitment to the post of Senior Superintendent. Going by the orders issued by the Government, right from the taking over of the College, it can be seen that there is no corresponding post in the Medical Education Service for the applicant, who was working as Spl. Officer (E&T) in the erstwhile College. There is also no provision that an employee in the erstwhile College has to be accommodated in a particular post. By Annexure A20 order the applicant was accommodated in the post of UDC. Though the applicant has stated that the Engineers were allowed to continue as a vanishing category and therefore he is also entitled to be retained like them, it was a matter left to the Government to consider. Government, after considering his claim, has issued Annexure A24 order. In that view of the matter, this Tribunal would not be in a position to direct the Government to treat the post held by the applicant as a vanishing category or to absorb or retain the applicant in a particular post, in the absence of any provision for the same in any of the orders issued on taking over of the College. As contended by the learned Government Pleader, the basic orders issued by the Government are not under challenge in this Original Application. As contended by the learned Government Pleader, the basic orders issued by the Government are not under challenge in this Original Application. Therefore it cannot be said that there is any illegality in the impugned orders.” 5. In this Original Petition, by filing I.A.No.1 of 2025, the petitioner has produced Exts.P9 to P11 documents. Similarly, the 3 rd respondent filed an affidavit dated 21.06.2025, producing therewith Exts.R3(a) to R3(e)documents. 6. Heard the learned Senior Counsel for the petitioner and the learned Senior Government Pleader for the respondents. 7. The learned Senior counsel would submit that after the takeover of Medical College by the Government, two posts of Senior Superintendent have been created. The pay scale of those two posts is the same as that of the pay scale of the post of Special Officer held by the petitioner, i.e., Rs.18740-33680. The Tribunal failed to appreciate this fact while dismissing the original application, holding that there is no evidence to hold that the post of Senior Superintendent is equivalent to the post which was held by the petitioner under CAPE. As regards the qualification of the petitioner is concerned, the learned Senior Counsel would submit that at no point of time, the qualification of the petitioner was held as not in accordance with Annexure A5 notification, wherein the qualification for the post of Special Officer is stated as Post Graduation, Master of Business Administration (MBA-IInd Class). The learned Senior Counsel would submit that Master of Business Administration is a Post Graduation and hence the petitioner is qualified for the post of Special Officer. It is vehemently submitted by the learned Senior Counsel that after taking over the College by the Government, the probation of the petitioner was declared by Annexure A16 order dated 27.02.2016. It is further pointed out that the learned Senior Counsel that the Tribunal dismissed the original application mainly for the reason that the petitioner was not able to prove that the post of Senior Superintendent was created to accommodate the petitioner, who was working in the post of Special Officer. In fact, at the time of considering the original application, the petitioner was not in possession of Ext.P9 letter dated 28.02.2015 issued by the 3 rd respondent to the 2 nd respondent, wherein the proposal was made for the creation of the post of the Senior Superintendent to accommodate the Special Officer at Government Medical College, Ernakulam. In fact, at the time of considering the original application, the petitioner was not in possession of Ext.P9 letter dated 28.02.2015 issued by the 3 rd respondent to the 2 nd respondent, wherein the proposal was made for the creation of the post of the Senior Superintendent to accommodate the Special Officer at Government Medical College, Ernakulam. Pursuant to a meeting held on 09.06.2015 in the chamber of the Minister of Health and Family Welfare regarding integration of staff of Medical College, Ernakulam, the 3 rd respondent issued Ext.P10 letter dated 02.07.2015 to the 1 st respondent with a revised list of remaining permanent staff working in the Administration and Project Wing of the Medical College. In the revised list, the petitioner’s name is Serial No.15 under the title ‘Details of regular staff to be absorbed as these posts are not in DME service’. In the remarks column, it is mentioned that ‘No post of Special Officer in DME service. Considering the present status recommended for the posts of Junior Superintendent/Senior Superintendent (assigned designation of Finance Officer in GMC for a short period). The recommendations found in Ext.P9 and P10 were accepted in Annexure A19 Government Order. But without considering these decisions, the Government downgraded the post of Senior Superintendent to Upper Division Clerk. These facts could not be brought to the notice of the Tribunal since the documents were withheld by the respondents. 8. On the other hand, the learned Senior Government Pleader would submit that the petitioner has the qualification of B.Com and MBA. But Annexure A5 stipulates Post-Graduation and MBA. The MBA cannot be equated with that of Post-Graduation. The CAPE appointed the employees at their own whims and fancies without following the communal reservation. The petitioner received the salary attached to the post of Senior Superintendent only on the basis of the orders issued by the Court. The post of Senior Superintendent is a promotion post of Junior Superintendent. The post of Senior Superintendent can be filled by the process as contemplated in Rule 28 of KS & SSR. The Government is not bound to accommodate or create an equal post to accommodate an incumbent like the petitioner, who was illegally appointed by CAPE. 9. The post of Senior Superintendent is a promotion post of Junior Superintendent. The post of Senior Superintendent can be filled by the process as contemplated in Rule 28 of KS & SSR. The Government is not bound to accommodate or create an equal post to accommodate an incumbent like the petitioner, who was illegally appointed by CAPE. 9. To this argument, the learned Senior Counsel submitted that it was considering the taking over of the College by the Government as a special case, the Government accommodated the employees working in CAPE to equal posts by creating such posts after taking over the College. Though the post of Senior Superintendent has to be filled up by promotion from Junior Superintendent, while considering the case of taking over of the College as a special case, the procedural formality need not be followed. 10. We have carefully gone through the materials on record and the impugned order of the Tribunal. As per Annexure A5 notification, the petitioner was permitted to participate in the selection process for the post of Special Officer and by Annexure A12 order, he was appointed to that post by CAPE. According to the petitioner, though Post Graduation and MBA are stated as the required qualifications for the post of Special Officer, MBA is equal to Post Graduation, and hence he was appointed to that post. Though a complaint was received pertaining to the qualification of the petitioner, by Annexure A17 letter, the 3 rd respondent stated that the petitioner has the required qualification. After taking over of the College by the Government, as per Annexure A16, his probation was declared. While disposing of the original application, the Tribunal mainly focused on the fact that there is no evidence or material to hold that the post of Senior Superintendent created is to accommodate the Special Officer or in other words it was as an equal post of Special Officer such posts are created in the Medical College. 11. We notice that at the time of passing the impugned order, Exts.P9 and P10 Government Orders were not before the Tribunal. Those orders were produced by the petitioner in this original petition by filing I.A.No.1 of 2025. According to the petitioner, those orders were not there with him at the time of considering the original application since they were withheld by the respondents. Those orders were produced by the petitioner in this original petition by filing I.A.No.1 of 2025. According to the petitioner, those orders were not there with him at the time of considering the original application since they were withheld by the respondents. From Ext.P9, we notice that a recommendation was made by the 3 rd respondent to the 2 nd respondent to create the post of Senior Superintendent equal to the post of Special Officer. In Annexure IV to Ext.P9, as the justification for post creation, it is seen entered that “ Special Officer (Employment & Training) (Equated to Sr. Superintendent) :-This is the only Supervisory Level post existing in the administrative wing of this Medical College. This officer is also performing the additional duties of Finance Officer besides supervision of Accounts and Purchase sections. Even though there is no mentioning of this post in MCI regulations, the post of Senior Superintendent is inevitable in Medical College for its smooth functioning and considering the present pattern followed under DME.” 12. Similarly, in Ext.P10 letter dated 02.07.2015 issued by the 3 rd respondent to the 1 st respondent, the petitioner’s name is included as Serial No.15 with a remark ‘No post of Special Officer in DME service. Considering the present Status, recommended for the post of Junior Superintendent/Senior Superintendent (Assigned designation of Finance Officer in GMC for a short period)’. 13. When the post of Senior Superintendent is created for accommodating the Special Officer in the same scale of pay, whether without an enquiry regarding the qualification that was stipulated many years ago when the petitioner was selected to the post of Special Officer can be taken as a ground to deny that post to the petitioner is one of the main point necessary to be considered while appreciating the rival contentions of the parties. While going through the facts and circumstances, we are of the view that since the Tribunal passed the impugned order without Exts.P9 and P10 orders before it and also without considering the point whether without any departmental enquiry regarding the qualification of the petitioner for being appointed in the post of Special Officer, he can be denied the equivalent post, the Tribunal can be directed to reconsider the matter in accordance with law by taking into consideration of the subsequent developments of production of Exts.P9 and P10 documents before this Court. Having considered the pleadings and materials on record and the submissions made at the Bar, we allow this original petition by setting aside the impugned order dated 04.03.2025 passed by the Tribunal in O.A.No.79 of 2020 and the matter is sent back to the Tribunal for reconsideration in the light of Exts.P9 and P10 documents produced in this original petition and also taking into consideration of the observation of this Court regarding the dispute pertaining to the qualification of the petitioner for the post of Special Officer.