Allowed

Abhishek Sudarsanan v. the Village Officer

Kerala HC26 Jun 2018WA/1229/2018

Case brief

AI extract

What is this about?

The High Court allowed the writ appeal, quashing the district collector's order denying the petitioner SC status. It held that the petitioner, descending from a Thandan recognized as SC (unlike Exhavas/Thiyyas), was entitled to a caste certificate and reservation benefits under the 2007 amendment.

What did the court decide?

The village officer was directed to issue a caste certificate showing the petitioner as belonging to the Scheduled Caste 'Thandan' community within three days; the 7th respondent was directed to treat

Abhishek Sudarsanan Vs the Village Officer — Caste Atrocities | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE ACTING CHIEF JUSTICE MR.HRISHIKESH ROY &

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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TUESDAY, THE 26TH DAY OF JUNE 2018 / 5TH ASHADHA, 1940

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WA.No. 1229 of 2018

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(AGAINST THE JUDGMENT IN WP(C).NO.8306/2018 DATED 18-06-2018)

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APPELLANT/PETITIONER:

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ABHISHEK SUDARSANAN, AGED 18 YEARS, S/O.DR.K.K.SUDARSANAN, RESIDING AT 'SUDARSANAM', THOKKAMPARA, P.O.KOTTAKKAL, MALAPPURAM DISTRICT.

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BY ADVS.SRI.P.U.SHAILAJAN SRI.M.SURESH KUMAR SRI.V.SREEJITH SMT.D.N.NISHANI SMT.VIDYA KURIAKOSE

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RESPONDENT(S)/RESPONDENTS:

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1. THE VILLAGE OFFICER, KOTTAKKAL VILLAGE, TIRUR TALUK, MALAPPURAM DISTRICT-676 503.

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2. THE TAHSILDAR, TIRUR TALUK, P.O.TIRUR, MALAPPURAM DISTRICT-676 101.

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3. THE VILLAGE OFFICER, KERALASSERI VILLAGE, P.O.KERALASSERI, PALAKKAD DISTRICT-678 641.

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4. THE TAHSILDAR, PALAKKAD TALUK, CIVIL STATION, PALAKKAD-678 001.

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5. THE DISTRICT COLLECTOR, MALAPPURAM-676 505.

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6. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2/-

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-2-

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WA.No. 1229 of 2018

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7. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, 5TH FLOOR,HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.

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R1 TO R7 BY SPL.GOVERNMENT PLEADER SRI.PRAKASHAN.K.V.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts 26/6/2018

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WA.No. 1229 of 2018

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEXURE 1 COPY OF THE RELEVANT PAGES OF THE BOOK SCHEDULED CASTES OF KERALA AS PER THE CENSUS 2011 PUBLISHED BY KIRTADS ANNEXURE II COPY OF THE GO(MS) NO.72/84/HWD DATED 15/10/1984 ISSUED BY THE GOVERNMENT OF KERALA ANNEXURE III COPY OF THE RESULT OF THE APPELLANT IN AIIMS MBBS ENTRANCE EXAMINATION 2018 ANNEXURE IV COPY OF THE RESULT OF THE APPELLANT IN KEAM 2018

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RESPONDENT'S ANNEXURES:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts 26/6/2018

HRISHIKESH ROY, Ag.CJ &

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A.K.JAYASANKARAN NAMBIAR, J.

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W.A. No.1229 of 2018

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Dated this the 26^th day of June, 2018

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J U D G M E N T

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A.K. Jayasankaran Nambiar, J.

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The petitioner in W.P.(C).No.8306 of 2018 is the appellant before us. In the writ petition, the petitioner impugned Ext.P19 community certificate that was issued to him stating that he belongs to the Hindu 'Thiyya' community, as also Ext.P34 proceedings of the District Collector, Malappuram, which rejected an appeal filed by his Father, on his behalf, after finding that he belongs to the Hindu 'Thiyya' community and was consequently not entitled to the benefit of a caste certificate showing his caste as 'Thandan', which is recognized as a Scheduled Caste under the Presidential Order enumerating the Scheduled Castes and Scheduled Tribes in the State of Kerala. The learned single Judge, in the judgment impugned before us, found that the claim of the petitioner, that he was a member of the Scheduled Caste 'Thandan' community, was not supported by any reliable document, on the basis of which a direction could be issued to the respondents concerned, to issue a caste certificate to the petitioner showing him as belonging to the 'Thandan' community for the purpose of claiming the benefits of reservation. The learned single Judge took note of a report that had been prepared by the 'KIRTADS', specifically for identification of the 'Thandan' community in Malabar and North Cochin areas, and finding that the

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said report had not been challenged in proceedings before this Court, held that the petitioner could claim the benefit of reservation as a member of the Scheduled Caste 'Thandan' community.

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Before us, the contention of the learned counsel for the appellant is that, the orders impugned in the writ petition, as also the findings of the learned single Judge, did not appreciate the scope of the amendment brought about through the Presidential Order (Amendment) Act, 2007, in so far as it is related to the 'Thandan' community, in its proper perspective. It is contented that, in the orders impugned in the writ petition, the stand taken by the respondents concerned was that there were no 'Thandans' in erstwhile Cochin and Malabar area, and in such areas in the State, there existed only 'Exhavas' and 'Thiyyas' who were known as 'Thandan'. The petitioner, who hailed from the Malabar area, was therefore held dis-entitled to a certificate that showed his caste status as 'Thandan', belonging to Scheduled Caste category for the purpose of the presidential order. The specific point asserted by the learned counsel for the appellant is that, through the amendment of the Presidential Order in 2007, there was only a clarity brought about, as regards the persons who would be included within the scope of 'Thandan' for the purposes of the Presidential Order, with the amendment making it clear that 'Exhavas' and 'Thiyyas', who were known as 'Thandans' in the erstwhile Cochin and Malabar areas, would no longer be eligible for the benefit of reservation as applicable to 'Thandans' in the Presidential Orders. The appellant relies, in particular, on Ext.P13 certificate that was issued to his Father Sudarsanan K.K on 15.07.1980 recognising him as belonging to the 'Thandan' caste that was included as a Scheduled Caste (other than 'Thiyya' or

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'Exhava') in the State of Kerala. It is contended that in as much as the certificate issued to his Father clearly recognized his father as forming part of the original 'Thandan' community that was recognized for the purposes of reservation under the Presidential Order, and also indicated that he did not belong to the excluded category for the purposes of the amended Presidential Order, there was no justification for the respondents to deny him the benefit of a caste certificate showing him as a member of the Scheduled Caste 'Thandan' community, for producing before the authorities concerned, in connection with his admission to a medical college. The petitioner also relies on Ext.P31 certificate, which is similar to Ext.P30 certificate, but issued in favour of Sri.Suresh K.K, the petitioner's paternal uncle. Placing reliance on the said documents, it is contended that the judgment of the learned single Judge needs to be set aside, and a direction given to the respondents concerned, to issue a caste certificate in favour of the petitioner showing his caste as Scheduled Caste 'Thandan'. The prayer in the writ appeal is made in the wake of the results now announced by the Commissioner for Entrance Examinations (CEE) which shows the rank of the petitioner, under the general category for medical course, as 5061 under the Application No.1101163. It is pointed out by the learned counsel for the appellant that if he secures the benefit of reservation as applicable to the Scheduled Caste 'Thandan' community his rank would be 58 thereby improving his chances of securing admission to a medical college.

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We have heard Sri.P.U.Shailajan, the learned counsel for the petitioner and Sri.Prakasan K.V, learned Special Government Pleader for the respondents. On

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consideration of the facts and circumstances of the case and the submissions made across the Bar, we find that the issue regarding identification of members of the 'Thandan' caste who would be eligible for reservation under the Presidential Order has engaged the attention of the Honourable Supreme Court on more than one occasion. We quote herein below extracts from the judgment of the Honourable Supreme Court in R.Unnikrishnan v. V.K.Mahanudevan, [(2014) 4 SCC 434],

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which throws light on the legislative and litigation history of the said issue.

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“ 28. That brings us to the second question which can be answered only in the perspective in which the same arises for consideration. The Constitution (Scheduled Castes) Order, 1950 specified the castes that are recognized as Scheduled Castes for different States in the country. Part XVI related to the then State of Travancore and Cochin. Item 22 of the Part specified the "Thandan" as a Scheduled Caste for the purposes of the entire State. The Presidential Order was modified by the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956. In the list comprising Part V applicable to the State of Kerala (the successor to the State of Trivandrum, Kochi), "Thandan" as a caste appeared at Item 14 for the purposes of the entire State except Malabar District. Then came the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 with effect from 27-7-1977. In the First Schedule under Part VII applicable to the State of Kerala "Thandan" as a caste was shown at Item 61. Unlike two other castes shown in the said Part, namely, Boyan and Malayan which were shown as Scheduled Caste for specific areas of the State of Kerala, Thandan had no such geographical or regional limitation. This implied that "Thandan" was included as a Scheduled Caste for the entire State of Kerala.

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29. Consequent upon the promulgation of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, the Kerala State Government started receiving complaints alleging that a section of Ezhuva/Thiyya community of Malabar areas and certain taluks of Malabar District who were also called "Thandan" were taking undeserved advantage of the Scheduled Caste reservations. The complaints suggested that these two categories of Thandan were quite different and distinct from each other and that the benefit admissible to Thandans generally belonging to the Scheduled Caste community should not be allowed to be taken by those belonging to the Ezhuva/Thiyya community as they are not Scheduled Castes.

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30. Acting upon these reports and complaints, the State Government appears to have issued instructions to the effect that applications for issue of community certificates to "Thandans" of all the four districts of Malabar areas

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and taluks of Thalapilly, Vadakkancherry and Chavakka in Trichur District, should be scrutinised to ascertain whether the applicant belongs to the Thandan community of the Scheduled Caste or the Thandan section of Ezhuva/Thiyya community and that while issuing community certificate to the Thandans who were Scheduled Caste, the authorities should note the name of the community in the certificate as "Thandans other than Ezhuva/Thiyya". These instructions were withdrawn to be followed by another order passed in the year 1987 by which the Government once again directed that while issuing caste certificate, the Revenue Authority should hold proper verification to find out whether the person concerned belongs to Thandan caste and not to Ezhuva/Thiyya.

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31. The matter eventually reached this Court in Palghat Jilla Thandan Samudhaya Samrakshna Samithi v. State of Kerala in which this Court formulated the principal question that fell for consideration in the following words: (SCC p.360, para 2)

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"2. The principal question that arises in these writ petitions and appeals is in regard to the validity of the decision of the State of Kerala not to treat members of the Thandan community belonging to the erstwhile Malabar District, including the present Palghat District, of the State of Kerala as members of the Scheduled Castes."

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This Court reviewed the legal position and declared that Thandan community having been listed in the Scheduled Castes Order as it then stood, it was not open to the State Government or even to this Court to embark upon an enquiry to determine whether a section of Ezhuva/Thiyya which was called Thandan in the Malabar area of the State was excluded from the benefits of the Scheduled Castes Order. This Court observed: ( Palghat Jilla case , SCC pp.36465, para 16)

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"16. Article 341 empowers the President to specify not only castes, races or tribes which shall be deemed to be Scheduled Castes in relation to a State but also 'parts of or groups within castes, races or tribes' which shall be deemed to be Scheduled Castes in relation to a State. By reason of Article 341 a part or group or section of a caste, race or tribe, which, as a whole, is not specified as a Scheduled Caste, may be specified as a Scheduled Caste. Assuming, therefore, that there is a section of the Ezhavas/Thiyyas community (which is not specified as a Scheduled Caste) which is called Thandan in some parts of Malabar area, that section is also entitled to be treated as a Scheduled Caste, for Thandans throughout the State are deemed to be a Scheduled Caste by reason of the provisions of the Scheduled Castes Order as it now stands. Once Thandans throughout the State are entitled to be treated as a Scheduled Caste by reason of the Scheduled Castes Order as it now stands, it is not open to the State Government to say otherwise, as it has purported to do in the 1987 Order". (emphasis supplied)

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32. What followed from the above is that Thandans, regardless of whether they were Ezhuvas/Thiyyas known as Thandans belonging to the

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Malabar area, were by reason of the above pronouncement of this Court in Palghat case held entitled to the benefit of being treated as Scheduled Caste by the Presidential Order, any enquiry into their being Thandas who were Scheduled Caste having been forbidden by this Court as legally impermissible. The distinction which the State Government sought to make between Ezhuva/Thiyyas known as Thandans like the respondent on the one hand and Thandans who fell in the Scheduled Caste category, on the other, thus stood abolished by reason of the above pronouncement. No such argument could be countenanced against the respondent especially when it is not the case of the appellants that the respondent is not an Ezhuva from Malabar area of the State of Kerala.

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33. The legal position has since the pronouncement of this Court in Palghat Jilla case undergone a change on account of the amendment of the Presidential Order in terms of the Constitution (Scheduled Castes) Order (Amendment) Act, 2007 which received the assent of the President on 29-82007 and was published in the Official Gazette on 30-8-2007. The Act, inter alia, made the following change in part VIII-Kerala for Entry 61:

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"61. Thandan (excluding Ezhuvas and Thiyyas who are known as Thandan, in the erstwhile Cochin and Malabar areas and carpenters who are known as Thachan, in the erstwhile Cochin and Travancore State)."

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34. There is in the light of the above no manner of doubt that Ezhuvas and Thiyyas who are also known as Thandan, in the erstwhile Cochin and Malabar areas are no longer Scheduled Caste for the said State w.e.f. 30-82007, the date when the amendment was notified. Parliament has, it is evident, removed the prevailing confusion regarding Ezhuvas and Thiyyas known as Thandan, in the erstwhile Cochin and Malabar areas being treated as Scheduled Caste. Ezhuvas and Thiyyas even if called Thandans and belonging to the above area will no longer be entitled to be treated as Scheduled Caste nor will the benefits of reservation be admissible to them.

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35. Taking note of the amending legislation, the Government of Kerala has by Order No.93/2010/SC/ST dated 30-8-2010 directed that Ezhuvas and Thiyyas who are known as Thandan, in the erstwhile Cochin and Malabar shall be treated as OBCs in List III. This part was not disputed even by Mr.Giri, counsel appearing for the respondent who fairly conceded that consequent upon the Amendment Act of 2007 (supra) Ezhuvas and Thiyyas known as Thandan, in the erstwhile Cochin and Malabar areas stand deleted from the Scheduled Castes List and are now treated as OBCs by the State Government. What is significant is that the deletion is clearly prospective in nature for Ezhuvas and Thiyyas known as Thandan in the above region were in the light of the decision of this Court in Palghat Jilla case entitled to be treated as Scheduled Caste and the distinction sought to be made between "Thandans", who were Ezhuvas and Thiyyas and those who were Scheduled Caste was held to be impermissible and non est in the eye of the law. ”

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On the facts of the instant case, we note that while, as already noted in the extracted portion above, the Presidential Order was amended in terms of the Constitution (Scheduled Castes) Order (Amendments) Act, 2007 which received the assent of the President on 29.08.2007 and entry 61 for the State of Kerala, which dealt with 'Thandan' community, was recast in the following terms:

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“61. Thandan (excluding Exhavas and Thiyyas who are known as Thandan, in the erstwhile Cochin and Malabar areas and carpenters who are known as Thachan, in the erstwhile Cochin and Travancore State)”,

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The State Government itself had, prior to the amendment, issued various Government Orders to ensure that the benefit of reservation, applicable to the Scheduled Caste 'Thandan' community was extended only to those for whom it iwas actually envisaged, and not to persons such as 'Ezhavas' and 'Thiyyas' who were known as 'Thandan' in the erstwhile Cochin and Malabar ares. The appellant produces as Annexure-II, a Government Order dated 15.10.1984, which refers to an earlier Government Order-G.O(MS) 76/79/DD dated 17.05.1979 that directed the authorities issuing community certificates in the State to ensure that such certificates are issued only after due enquiry as to whether the applicant was a “Thandan other than Ezhavas or Thiyyas”. The Government Order produced by the appellant, no doubt, withdraws the earlier Government Order of 17.05.1979, but the appellant relies on the said Government Order to show that, between 17.05.1979, when the earlier Government Order was issued, and 15.10.1984 when Annexure-II

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Government Order was issued, the authorities concerned with the issuance of community certificates were required to conduct an enquiry, and to ensure that the Scheduled Caste 'Thandan' certificate was given only to such 'Thandans' who answered to the description of “Thandan other than 'Ezhavas' or 'Thiyyas'. He would then refer to the certificate issued in favour of his Father and his paternal uncle to indicate that in the certificate issued to them also there is a clear indication that they were recognized as members of the Scheduled Caste 'Thandan' community and that they were not 'Thiyyas' or 'Ezhavas'. We find force in the contention of the learned counsel for the appellant and find that, as a matter of fact, the certificates issued in favour of the petitioner's Father and paternal Uncle, apart from stating that the said persons belonged to the 'Thandan' caste that was recognized as Scheduled Caste, also made it abundantly clear that the said persons were not 'Thiyyas' or 'Ezhavas' for the purpose of exclusion from the benefits envisaged for the members of the said community. In our view, in the absence of anything to suggest that the petitioner did not inherit the caste status of his Father, the petitioner ought to have been recognized as a member of the 'Thandan' community (other than those excluded pursuant to the amendments to the Presidential Order). Since Exts.P19 and P34 orders, that are impugned in the writ petition, do not consider this vital aspect, and have denied the petitioner the benefit of the caste certificate showing him as belonging to the Scheduled Caste 'Thandan' community, claimed through his paternal leniency, we deem it appropriate to quash the said orders and allow the writ appeal by setting aside the judgment of the learned single Judge. Taking note of the urgency of the situation projected by the appellant, where his application for a seat in the medical college is pending consideration by the 7^th respondent, we direct

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the 1^st respondent, the Village Officer, Kottakkal Village, to forthwith, and at any rate within three days from today, issue the petitioner with a caste certificate showing him as belonging to the Scheduled Caste 'Thandan' community. In the meanwhile, the 7^th respondent shall, taking note of the findings in this judgment, treat the online application submitted by the petitioner, as one submitted claiming the benefit of reservation as applicable to a member of the Scheduled Caste 'Thandan' community and proceed to deal with the same accordingly. The learned Government Pleader shall communicate the directions issued to the 7^th respondent to him forthwith, since we are informed by the counsel for the appellant that the online exercise of option for colleges has to be done by 5 p.m this evening.

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The Writ appeal is allowed as above.

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Sd/- HRISHIKESH ROY AG.CHIEF JUSTICE

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Sd/-

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A.K.JAYASANKARAN NAMBIAR

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JUDGE

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DG/26.6.18