Remanded

The Manager, Cmm Higher Secondary School v. State of Kerala

Kerala HC6 Dec 2018WP(C)/28132/2017

Case brief

AI extract

What is this about?

The Court rejected interference with a Government Order granting seniority to Smitha and remitted the matter to the Government to determine the legality of Rupesh's accommodation and adjust salary benefits for Smitha, Beeba K. Nath, and Rupesh after giving notice.

What did the court decide?

Order remitted to Government for consideration of rival claim between Beeba K. Nath and Rupesh and adjustment of Smitha's benefits.

The Manager, Cmm Higher Secondary School Vs… — Pension and Retirement Benefits | 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 MR. JUSTICE A.MUHAMED MUSTAQUE

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THURSDAY ,THE 06TH DAY OF DECEMBER 2018 / 15TH AGRAHAYANA, 1940

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WP(C).No. 25388 of 2017

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PETITIONER/S:

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BEEBA K.NATH H.S.A (ENGLISH), CMM HIGHER SECONDARY SCHOOL,THALAKKULATHUR, KOZHIKODE DISTRICT.

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BY ADV. DR.GEORGE ABRAHAM

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RESPONDENT/S:

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1 THE STATE OF KERALA REP. BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT,THIRUVANANTHAPURAM.685001.

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2 THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHI,, THIRUVANANTHAPURAM.695014.

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3 DEPUTY DIRECTOR OF EDUCATION KOZHIKODE, KOZHIKODE DISTRICT.673001.

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4 THE DISTRICT EDUCATIONAL OFFICER KOZHIKODE, KOZHIKODE DISTRICT.673001.

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5 THE MANAGER CMM HIGHER SECONDARY SCHOOL, THALAKKULATHUR,KOZHIKODE DISTRICT.673317.

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6 P. SMITHA ANASWARA, NADUVANNUR PO, KOZHIKODE,KOZHIKODE DISTRICT.673614.

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7 K.G RUPESH H.S.A, CMM HIGHER SECONDARY SCHOOL,THALAKKULATHUR, KOZHIKODE.

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BY ADVS. GOVERNMENT PLEADER

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SRI.K.B.GANGESH

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WP(C).No. 25388 of 2017 and other connctd.cases 2

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SRI.K.MOHANAKANNAN SRI.S.P.ARAVINDAKSHAN PILLAY SMT.L.ANNAPOORNA SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.V.VARGHESE

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BY GOVERNMENT PLEADER B.UNNIKRISHNAKAIMAL GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.12.2018, ALONG WITH WP(C).12788/2018, WP(C).28132/2017, WP(C).28756/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 25388 of 2017 and other connctd.cases 3

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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THURSDAY ,THE 06TH DAY OF DECEMBER 2018 / 15TH AGRAHAYANA, 1940

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WP(C).No. 12788 of 2018

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PETITIONER/S:

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BEEBA K NATH H.S.A. (ENGLISH), CMM HIGHER SECONDARY SCHOOL,THALAKKULATHUR, HOZHIKODE DISTRICT

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BY ADV. DR.GEORGE ABRAHAM

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RESPONDENT/S:

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1 THE STATE OF KERALA REP. BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT,THIRUVANANTHAPURAM-685 001. 2 THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHI, THIRUVANANTHAPURAM-695 014. 3 DEPUTY DIRECTOR OF EDUCATION KOZHIKODE, KOZHIKODE DISTRICT-673 001. 4 THE DISTRICT EDUCATIONAL OFFICER KOZHIKODE, KOZHIKODE DISTRICT-673 001. 5 THE MANAGER CMM HIGHER SECONDARY SCHOOL,THALAKKULATHUR, KOZHIKODE DISTRICT-673 317. 6 P. SMITHA ANASWARA, NADUVANNUR P.O.,KOZHIKODE, KOZHIKODE DISTRICT-673 614. BY ADVS. GOVERNMENT PLEADER SRI.B.UNIIKRISHNA KAIMAL S.P.ARAVINDAKSHAN PILLAY SRI.K.MOHANAKANNAN ANAND S.A. SMT.L.ANNAPOORNA SMT.N.SANTHA SRI.PETER JOSE CHRISTO SMT.A.R.PRAVITHA SRI.V.VARGHESE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.12.2018, ALONG WITH WP(C).28756/2017, WP(C).28132/2017, WP(C).25388/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 25388 of 2017 and other connctd.cases 4

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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THURSDAY ,THE 06TH DAY OF DECEMBER 2018 / 15TH AGRAHAYANA, 1940

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WP(C).No. 28132 of 2017

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PETITIONER/S:

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THE MANAGER, CMM HIGHER SECONDARY SCHOOL CMM HIGHER SECONDARY SCHOOL, THALAKULATHOOR, KOZHIKODE DISTRICT.

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BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001.

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2 THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHI, THIRUVANANTHAPURAM-695014.

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3 DEPUTY DIRECTOR OF EDUCATION KOZHIKODE, KOZHIKODE DISTRICT-673001.

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4 THE DISTRICT EDUCATIONAL OFFICER KOZHIKODE, KOZHIKODE DISTRICT-673001.

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5 P.SAMITHA ANASWARA, NADUVANNUR P.O., KOZHIKODE, KOZHIKODE DISTRICT-683317.

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6 BEEBA K.NATH H.S.A.(ENGLISH), CMM HIGHER SECONDARY SCHOOL, THALAKKULATHUR, KOZHIKODE DISTRICT-673317.

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BY ADVS. GOVERNMENT PLEADER

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WP(C).No. 25388 of 2017 and other connctd.cases

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SRI.B.UNNIKRISHNA KAIMAL S.P.ARAVINDAKSHAN PILLAY ANAND S.A. SMT.L.ANNAPOORNA SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.V.A.MUHAMMED SRI.V.VARGHESE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.12.2018, ALONG WITH WP(C).28756/2017, WP(C).12788/2018, WP(C).25388/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 25388 of 2017 and other connctd.cases

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶58

PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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THURSDAY ,THE 06TH DAY OF DECEMBER 2018 / 15TH AGRAHAYANA, 1940 WP(C).No. 28756 of 2017

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PETITIONER/S:

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P. SMITHA AGED 35 YEARS W/O. ANEESH, HIGH SCHOOL ASSISTANT (ENGLISH), CMM HIGHER SECONDARY SCHOOL, THALAKKULATHUR, KOZHIKODE673371 (RESIDING AT ANASWARA, P.O.NADUVANNUR, KOZHIKODE DISTRICT0673317)

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BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.L.ANNAPOORNA PETER JOSE SRI.S.A.ANAND SMT.N.SANTHA SRI.V.VARGHESE

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RESPONDENT/S:

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1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATIONAL DEPARTMENT, SECRETARIAT ANNEXE-II, THIRUVANANTHAPURAM -695001.

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2 THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-695014

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3 THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE, KOZHIKODE-673020

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4 THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE, KOZHIKODE-673001

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5 THE MANAGER, CMM HIGHER SECONDARY SCHOOL, THALAKKULATHUR, KOZHIKODE-673317

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6 THE HEADMASTER, CMM HIGHER SECONDARY SCHOOL, THALAKKULATHUR,

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WP(C).No. 25388 of 2017 and other connctd.cases 7

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KOZHIKODE-673317

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7 SMT.BEEBA K.NATH, CMM HIGHER SECONDARY SCHOOL, THALAKKULATHUR, KOZHIKODE-673317

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BY ADVS. GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL SRI.K.MOHANAKANNAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.12.2018, ALONG WITH WP(C).12788/2018, WP(C).28132/2017, WP(C).25388/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 25388 of 2017 and other connctd.cases

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JUDGMENT

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[ WP(C) 25388/2017 ,WP(C).12788/2018 ,WP(C).28132/2017 ,WP(C).28756/2017 ]

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These matters are related to the claim to the post of HSA English in CMM Higher Secondary School, Thalakkulathur, Kozhikode. Smt. P. Smitha the writ petitioner in W.P.(C) No. 28756/2017 was appointed as HSA (English) with effect from 01.06.2010. Smt.Beeba.K. Nath the writ petitioner in W.P.(C) No.25388 of 2017 and 12788 of 2018, was appointed in a vacancy on 31.08.2010.

¶81

That appointment was approved with effect from 17.11.2011. Smitha's appointment was not approved that time for the reason that she was appointed in a promotion vacancy of Sheelamma. K.Geroge. The Manager withdrew her appointment with effect from 01.06.2011. There were series of challenges and many intervening facts involved. I am not adverting to those aspects. As stands now Smitha's appointment has been approved.

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I am only referring to the Judgment in Writ Appeal Nos.1781, 1977 and 2417 of 2015 for the purpose of disposal of this case. The rivalry between Smitha and Beeba K.Nath culminated in the writ appeal

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WP(C).No. 25388 of 2017 and other connctd.cases 9

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judgment. The writ appeal was filed by Beeba.K.Nath, Smitha and the Manager. In the writ appeal it was argued that Sri. Rupesh HSA(Maths) who was found surplus during higher level verification conducted in an academic year 2010-2011 was accommodated against the post of HSA(English). The rival claim of Smitha and Beeba.K.Nath could have an impact in respect of post in which Rupesh was accommodated. Admittedly, there were two posts of HSA English. Therefore, the Division Bench directed the government to consider the matter after hearing Smitha, Beeba.K.Nath , Rupesh and the Manager.

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The Government noting that Smt. Smitha is having a superior claim, ordered an approval with effect from 17.11.2011. Smitha has filed a Writ Petition No. 28756/2017 to implement that Government Order. Smitha has a claim that it should be approved with effect from 01.06.2010. The date on which Beeba.K.Nath was actually appointed.

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Beeba.K.Nath is a junior. I do not find any reason to interfere with the Government Order to the extent of upholding the claim of Smitha as a senior. However Beeba.K.Nath had a case that

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she should have been accommodated against Rupesh. According to

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WP(C).No. 25388 of 2017 and other connctd.cases 10

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Beeba.K.Nath that Rupesh was accommodated in a vacancy of HSA(English) in violation of Rule 6 (I) of Chapter XXIII of KER. Beeba.K.Nath also place the reliance in the judgments of this Court in Deepa Augustine v. Geetha Alex [2008 (2) KLT 771], State of kerala and others v. Minimole C and Another [2012 (2) KHC 750] and Minimole C. v. State of Kerala [2012 (4) KLT 442].

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5 . Rupesh entered appearance and would contend that, he was appointed in a vacancy in accordance with the Government Order creating English as a core subject as G.O.(MS)No.11/02/G.Edn. Dated 07.01.2002. It is submitted that no one had challenged accommodating him in the post of HSA English.

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There are two important facts that remain unanswered in the Government Order, one is the rival claim between Beeba.K.Nath and Rupesh. In the Writ Appeal judgment itself this Court directed the Government to hear Rupesh before passing orders. The legality of accommodating Rupesh in the vacancy of HSA English need to be answered by the Government. That was not done. Whether Rupesh could have been accommodated in that vacancy or not is a matter to be considered by the Government.

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The second important aspect is in regard to the claim of

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WP(C).No. 25388 of 2017 and other connctd.cases 11

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Smitha with effect from 01.06.2010. It is to be noted Beeba.K.Nath and Rupesh were drawing salary from that period, in what manner the claim should be adjusted has to be considered by the Government. It is now submitted at the Bar that Rupesh as well as Beeba.K.Nath had been thrown out and deployed. Smitha is not entitled to get salary since she had not actually worked but at least she could be given notional benefits from original date of appointment. Anyway it is a matter for the Government to consider. In such circumstances I am of the view that the Government order has to be remitted for consideration only in regard to the following matters:-

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Rival claim between Beeba.K.Nath and Rupesh.

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The benefits claimed by Smitha from 01.06.2010. It is made clear that this Court had not interfered with the Government Order upholding the claim of seniority of Smitha. She is entitled to draw all salaries due to her. In the light of the Government Order, Smitha shall be given salary. In regard to Beeba.K.Nath and Rupesh, the department can disburse salary in accordance with the law. Needless to say, Beeba.K.Nath, Smitha, Rupesh and the Manager shall be given notice before taking decision. Needfull shall be done within three

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WP(C).No. 25388 of 2017 and other connctd.cases 12

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months.

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The writ petition is disposed of as above.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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sree

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WP(C).No. 25388 of 2017 and other connctd.cases

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APPENDIX OF WP(C) 25388/2017

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PETITIONER'S/S EXHIBITS:

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EXHIBIT	P1	TRUE COPY OF THE THE 3RD RESPONDEN	ORDER DATED 28.1.2012 OF T.
EXHIBIT	P2	TRUE COPY OF THE DATED 14.3.2013.	ORDER OF THE 3RD RESPONDENT
EXHIBIT	P3	TRUE COPY OF THE 1.6.2011 ALONG WI APPROVAL DATED 28	APPOINTMENT ORDER DATED TH THE PROCEEDINGS FOR .11.2013.
EXHIBIT	P4	TRUE COPY OF THE RESPONDENT, DATED	PROCEEDINGS OF THE 5TH 21.5.2012,.
EXHIBIT	P5	TRUE COPY OF THE THE 2ND RESPONDEN	ORDER DATED 23.4.2013 OF T.
EXHIBIT	P6	TRUE COPY OF THE THE 1ST RESPONDEN	ORDER DATED 11.11.2014 OF T.
EXHIBIT	P7	TRUE COPY OF THE NO.1781/2015,DATE	JUDGMENT IN WRIT APPEAL D 21.10.2016
EXHIBIT	P8	TRUE COPY OF THE THE MANAGER DATED	ARGUMENT NOTE SUBMITTED BY 23.2.2017,
EXHIBIT	P9	TRUE COPY OF TEH NO.2098/17/G.EDN.	GO(RT) DATED 29.6.2017.
EXHIBIT	P10	A COPY OF THE REP THE PETITIONER DA	RESENTATION SUBMITTED BY TED 7TH AUGUST, 2017.

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RESPONDENT'S EXHIB	ITS:
EXHIBIT R7(A)	A TRUE 27 AND 4TH RE	COPY THE P PONDEN	OF THE APP ROCEEDIGNS T.	OINTMENT ORDER IN FORM OF APPROVAL OF THE
EXHIBIT R7(B)	A TRUE THE S 22.12.	COPY CHOOL 2011	OF THE ST FOR THE	AFF FIXATION ORDER OF YEAR 2010-11 DATED
EXHIBIT R7(C)	A TRUE DATED	COP 07.01.	Y OF THE 2002.	GO(MS)NO.11/2002/G.EDN
EXHIBIT R7 (D)	A TRUE DATED	COPY 10.02.	OF THE CI 1995.	RCULAR NO.H2/544419/94

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WP(C).No. 25388 of 2017 and other connctd.cases

¶111

¶112

APPENDIX OF WP(C) 12788/2018

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PETITIONER'S/S EXHIBITS:

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EXHIBIT	P1	TRUE COPY OF THE THE 3RD RESPONDEN	ORDER DATED 28.01.2012 OF T.
EXHIBIT	P2	TRUE COPY OF THE DATED 14/3/2013.	ORDER OF THE 3RD RESPONDENT
EXHIBIT	P3	TRUE COPY OF THE 01.06.2011 ALONG APPROVAL DATED 28	APPOINTMENT ORDER DATED WITH THE PROCEEDINGS FOR .11.2013.
EXHIBIT	P4	TRUE COPY OF THE RESPONDENT, DATED	PROCEEDINGS OF THE 5TH 21.5.2012.
EXHIBIT	P5	TRUE COPY OF THE THE 2ND RESPONDEN	ORDER DATED 23.04.2013 OF T
EXHIBIT	P6	TRUE COPY OF THE THE 1ST RESPONDEN	ORDER DATED 11.11.2014 OF T.
EXHIBIT	P7	TRUE COPY OF THE NO.1781/15.	JUDGMENT IN THE WRIT APPEAL
EXHIBIT	P8	TRUE COPY OF THE THE MANAGER DATED	ARGUMENT NOTE SUBMITTED BY 23/2/2017.
EXHIBIT	P9	TRUE COPY OF THE DATED 29/6/2017.	GO(RT) NO. 2098/17/G.EDN.
EXHIBIT	P10	TRUE COPY OF THE 28132/17	INTERIM ORDER IN WPC
EXHIBIT	P11	TRUE COPY OF THE DATED 26/3/2018.	ORDER OF THE 4TH RESPONDENT
EXHIBIT	P12	TRUE COPY OF THE DIRECTOR OF EDUCA 1/12/2017.	ORDER PASSED BY THE DEPUTY TION, KOZHIKODE DATED
RESPOND	ENT'S EXHIBITS:
EXHIBIT	R6 (A)	TRUE COPY OF THE DATED 18.10.2012 NO.A1-7721/12/L.D PUBLIC INFORMATIO	LETTER OF SMT.P.SMITHA ALONG WITH THE INFORMATION IS.DATED 10.11.2012 OF THE N OFFICER.
EXHIBIT	R6(B)	TRUE COPY OF THE BEFORE THE GOVERM	REVISION PETITION FILED ENT DATED 11.11.2013.

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WP(C).No. 25388 of 2017 and other connctd.cases

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¶117

APPENDIX OF WP(C) 28132/2017

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1A TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER IN THIS REGARD DATED 28/01/2012. EXHIBIT P2A TRUE COPY OF THE ORDER OF THE DEPUTY DIRECTOR OF EDUCATION DATED 14/03/2013. EXHIBIT P3A TRUE COPY OF THE ORDER OF THE DIRECTOR OF PUBLIC INSTRUCTION DATED 23/04/2013. EXHIBIT P4A TRUE COPY OF THE CANCELLATION OF THE APPOINTMENT OF THE 5TH RESPONDENT DATED 21/05/2011. EXHIBIT P5A TRUE COPY OF THE G.O(RT)4919/2014/G.EDN DATED 11/11/2014. EXHIBIT P6A TRUE COPY OF THE COMMON JUDGMENT IN WAS NOS.1781, 1977 AND 2417 OF 2015 DATED 21/10/2016. EXHIBIT P6(A)TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER. EXHIBIT P7A TRUE COPY OF THE G.O(RT)2098/2017/G.EDN DATED 29/06/2017.

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RESPONDENT'S EXHIBTS: EXHIBIT R5(A) TRUE COPY OF THE G.O(RT) NO.4919/2014/G.EDN.DATED 11.11.2014 EXHIBIT R5(B) TRUE COPY OF TEH ORDER NO.F1/53423/2014/DPI/R.DIS DATED 19.09.2014..

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WP(C).No. 25388 of 2017 and other connctd.cases

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¶123

APPENDIX OF WP(C) 28756/2017

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PETITIONER'S/S EXHIBITS:

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EXHIBIT	P1 TRUE COPY OF THE PETITIONER DATED	APPOINTMENT ORDER OF THE 1/6/2010
EXHIBIT	P2 TRUE COPY OF THE 28/1/2012 OF THE	ORDER NO.B6/5788/11 DATED 3RD RESPONDENT
EXHIBIT	P2 A TRUE COPY OF THE 28/1/2012 OF THE	ORDER NO.B5/5768/11 DATED 3RD RESPONDENT
EXHIBIT	P3 TRUE COPY OF THE 21/5/2012 OF THE	ORDER NO. 7/2011 DATED MANAGER
EXHIBIT	P4 TRUE COPY OF THE RA(4)65872/12/DP THE 2ND RESPONDE	ORDER NO. I/K.DIS. DATED 23/4/2013 OF NT
EXHIBIT	P5 TRUE COPY OF THE RA(4)65872/12/DP THE 2ND RESPONDE	ORDER NO. I/K.DIS. DATED 23/4/2013 OF NT
EXHIBIT	P6 TRUE COPY OF THE NO.EM4/29472/201 2013 OF THE 2ND	ORDER 3/DPI/K.DIS. DATED 31/-10- RESPONDENT
EXHIBIT	P7 TRUE COPY OF THE (RT)NO.4919/2014 THE GOVERNMENT	G.O. /G.EDN.DATED 11/11/2014 OF
EXHIBIT	P8 TRUE COPY OF THE NO.32339/2014-N	JUDGMENT IN WP(C) DATED 27/7/2015
EXHIBIT	P9 TRUE COPY OF THE DATED 21/10/2016	JUDGMENT IN WA NO.1977/2015
EXHIBIT	P10 TRUE COPY OF THE NO.2098/2017/G.E GOVERNMENT	G.O.(RT) DN. DATED 29/6/2017 OF THE
RESPOND	ENT'S/S EXHIBITS: NIL

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//TRUE COPY// PA TO JUDGE Sd/-

The Manager, Cmm Higher Secondary School v. State of Kerala

Case brief

What is this about?

What did the court decide?

The Manager, Cmm Higher Secondary School v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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