Partly allowed

State of Kerala v. Bipin Pavithran v.

Kerala HC10 Nov 2021WA/1346/2021

Case brief

AI extract

What is this about?

The High Court of Kerala held that Government Circulars limiting appointments to daily wages in uneconomic schools apply only to teachers, not non-teaching staff. Statutory obligations under the Kerala Education Rules mandate regular scale appointments for established Peon/Office Attendant posts.

What did the court decide?

Appeals partly allowed; appointments to be approved on regular scale; Single Judge finding invalidating GO dated 12.06.2018 vacated.

State of Kerala Vs Bipin Pavithran v. — Service and Employment | Kerala HC (2021)

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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.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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WEDNESDAY, THE 10^TH DAY OF NOVEMBER 2021/19TH KARTHIKA, 1943

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WA NO. 1358 OF 2021

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AGAINST THE JUDGMENT DATED 20.01.2021 IN WP(C).NO. 2244/2020 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANTS/RESPONDENTS 1 TO 4 IN WP(C):

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION(N)DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE DIRECTOR OF GENERAL EDUCATION, GOVERNMENT OF KERALA, JAGATHY.P.O, THIRUVANANTHAPURAM-695014.

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3 THE DISTRICT EDUCATIONAL OFFICER PATHANAMTHITTA, PATHANAMTHITTA.P.O, PIN-683645.

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4 THE ASSISTANT EDUCATIONAL OFFICER KOZHENCHERRY, THEKKEMALA.P.O, PATHANAMTHITTA DISTRICT, PIN-695654.

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BY SENIOR GOVERNMENT PLEADER SRI.A.J.VARGHEE,

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RESPONDENTS/PETITIONER & 5TH RESPONDENT IN WP(C):

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1 APARNA MOHAN KANJIRAPPARA NALUKETTU, PRAKKANAM.P.O, PATHANAMTHITTA DISTRICT, PIN-689643.

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2 THE MANAGER, M.G.U.P.SCHOOL, PRAKKANAM, PRAKKANAM.P.O,

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 & W.A.No.1435 of 2021

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PATHANAMTHITTA DISTRICT, PIN-683643.

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BY ADVS. SRI.V.B.PREMACHANDRAN SRI.K.N.GOVINDANKUTTY MENON SRI.S.MADHAVAN NAIR

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2021, ALONG WITH WA.NOS.1346/2021 & 1435/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 & W.A.No.1435 of 2021

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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.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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WEDNESDAY, THE 10^TH DAY OF NOVEMBER 2021 / 19TH KARTHIKA,

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1943

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WA NO. 1346 OF 2021

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AGAINST THE JUDGMENT DATED 02.03.2021 IN WP(C) 29514/2018 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANTS/RESPONDENTS IN WP(C):

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE DISTRICT EDUCATIONAL OFFICER CHAVAKKAD-680 506.

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3 THE ASSISTANT EDUCATIONAL OFFICER VALAPPAD-680 567.

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BY SENIOR GOVERNMENT PLEADER SRI.A.J.VARGHESE

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RESPONDENTS/PETITIONERS IN WP(C):

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1 BIPIN PAVITHRAN V. AGED 31 YEARS MANAGER, PAPPU MASTER MEMORIAL UPPER PRIMARY SCHOOL, CHENTRAPPINNI, THRISSUR DISTRICT-680 687.

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 & W.A.No.1435 of 2021

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2 ANAND N.V, OFFICE ATTENDANT (PEON), PAPPU MASTER MEMORIAL UPPER PRIMARY SCHOOL, CHENTRAPPINNI, THRISSUR DISTRICT-680 687. BY ADVS: SRI.M.R.ANISON SMT.V.P.SEEMANDINI, SR.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2021, ALONG WITH WA.1358/2021 AND W.A.NO.1435 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 & W.A.No.1435 of 2021

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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.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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WEDNESDAY, THE 10^TH DAY OF NOVEMBER 2021 / 19TH KARTHIKA,

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1943

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WA NO. 1435 OF 2021

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AGAINST THE JUDGMENT DATED 09.02.2021 IN WP(C) NO.41575/2018 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANTS/RESPONDENTS 1-4 IN WP(C):

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1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT-680 506.

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3 THE ASSISTANT EDUCATIONAL OFFICER, VALAPPAD, THRISSUR DISTRICT-680 567.

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BY SENIOR GOVERNMENT PLEADER SRI.A.J.VARGHESE

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RESPONDENTS/PETITIONER & 4TH RESPONDENT IN WP(C):

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1 KARTHIK K., AGED 26 YEARS OFFICE ATTENDANT, SARASWATHI VILASAM U.P.SCHOOL, EDAMUTTAM, THRISSUR-680 568.

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2 THE MANAGER, SARASWATHI VILASAM U.P.SCHOOL,

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 & W.A.No.1435 of 2021

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EDAMUTTAM, THRISSUR-680 568.

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BY ADV.SRI.K.B.GANESH

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2021, ALONG WITH WA.NO.1358/2021 AND WA.NO.1346/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 &

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W.A.No.1435 of 2021

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JUDGMENT

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A.K.Jayasankaran Nambiar, J.

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As all these Writ Appeals preferred by the State involve a common issue they are taken up together for consideration and disposed by this common judgment.

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W.A.No1358 of 2021 has been filed impugning the judgment dated 20.01.2021 of the learned Single Judge in WP(C).No.2244 of 2020, W.A.No.1435 of 2021 has been preferred against the judgment dated 09.02.2021 of the learned Single Judge in WP(C).No.41575 of 2018 and W.A.No.1346 of 2021 has been preferred against the judgment dated 02.03.2021 of the learned Single Judge in WP(C).No.29514 of 2018. The issue that arises in all these Writ Appeals concerns the legality of the appointment of the writ petitioners as Peons/Office Attendants in Upper Primary Schools, against vacancies that arose consequent to the retirement of the earlier incumbent in the sole post of Peon/Office Attendant in the said schools. The appointment

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 &

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W.A.No.1435 of 2021

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of the petitioners in the schools in question were not approved by the educational authorities, on the ground that, the schools in question had become uneconomic schools as per the criteria stipulated by the Government in the Circular dated 06.11.2012 as amended. The consistent stand of the educational authorities was that inasmuch as the schools in question were uneconomic schools, the appointment of Peons/Office Attendants could not be approved and, alternatively, even if approved, could only be approved on daily wage basis.

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In the Writ Petitions that were preferred impugning the Government Orders refusing approval to the appointments of the petitioners, the contention taken was essentially that, unlike in the case of teaching staff of aided UP Schools to whom the Circulars aforementioned applied, the post of Peon in Upper Primary Schools was one that was contemplated under Chapter XXIV B of the Kerala Education Rules (KER) read with the applicable provisions of Chapter XXIV A of the KER, and hence, there was an obligation on the State Government to approve the appointment of Peons/Office Attendants in established vacancies that had arisen in the schools in those posts. The contention, in other words, was essentially that the Circulars in question that permitted the Government to approve appointments on

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 &

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W.A.No.1435 of 2021

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daily wage basis applied only to appointments made to vacancies in teaching posts and not to established vacancies in non-teaching posts.

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The learned Single Judge who considered the Writ Petitions, through the separate judgments referred above, found force in the contention of the writ petitioners that the right to appointment to the non-teaching posts of Peon/Office Attendant in Aided U.P Schools was one that flowed from the statutory provisions, and hence, could not be restricted by the terms of the Government Circulars referred above. The Writ Petitions were therefore disposed with a direction to the Government to reconsider the case of the writ petitioners taking note of their statutory rights under the KER and after affording an opportunity of hearing to the petitioners as also to the Manager of the school and to take a decision in the matter within three months from the date of receipt of a copy of the judgment. In his judgments, the learned Single Judge found that the provisions of a Government Circular could not overwrite the statutory provisions under the KER, and hence, it was not proper for the Government to have denied approval to the appointments of the petitioners as Peons/Office Attendants. The learned judge, in his judgment dated 20.01.2021 in WP(C).No.2244 of 2020 went further and set aside the Circular dated 12.06.2018 issued by the Government, with regard to the appointment of teachers in uneconomic schools.

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 &

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W.A.No.1435 of 2021

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Before us, it is the contention of the learned Government Pleader appearing on behalf of the appellants, based on the judgments dated 10.03.2021 in W.A.No119 of 2020 and the earlier judgment dated 26.08.2020 of another Division Bench of this Court in W.A.No.1388 of 2019, that the Circulars of the Government referred above clearly warranted that an appointment of a teacher in an uneconomic aided school could only be on daily wage basis and a review of the said approval by the Director of Public Instructions could be undertaken only when the school turned economic, in which event the teacher could be extended the regular scale of pay. It is further submitted by the learned Government Pleader that when it comes to the appointment of non-teaching staff in the uneconomic aided schools in the State, the provisions of the Circulars referred above would mutatis mutandis apply to govern the terms of their appointment. To buttress the aforesaid contention, the learned Government Pleader refers to Rule 7 of Chapter XXIV B which stipulates, inter alia, that the Rules regarding appointment contained in Chapter XXIV A applicable to teachers of aided schools shall mutatis mutandis apply to the non-teaching staff in aided schools as well.

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 &

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W.A.No.1435 of 2021

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We have given our anxious consideration to the submissions of the learned Government Pleader but find ourselves unable to accept the said contentions for the following reasons. Firstly, we find that unlike in the case of teaching staff, the provisions of Chapter XXIV B, read with Chapter XXIV A of the KER, mandate that in every Upper Primary School there can be appointed in the non-teaching establishment of such school one Peon (subsequently re-designated as Office Attendant). It is also discernible from the provisions of the KER that under certain circumstances, where the number of students exceeds a particular strength, an additional post of Peon can be sanctioned in Aided High Schools in the State. Inasmuch as we are in these Writ Appeals concerned only with Upper Primary Schools, the said provision pertaining to High Schools may not have any relevance. We thought it necessary to refer to the said provisions only because the learned Government Pleader brought to our notice two earlier Government Orders G.O.(MS) No-179/94/G. Edn. dated 20.10.1994 and G.O (MS) No.487/95/G. Edn. Dated 26.09.1995, both of which deal with the situation of closing down of uneconomic schools in the State and the retention of posts of teachers and non-teaching staff in such situations. A perusal of the Government Orders clearly reveals that the Government having examined the matter found that in lieu of ousting the teaching and non-teaching staff from their posts consequent to the

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 &

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W.A.No.1435 of 2021

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school being declared uneconomic, as a special case they could be retained in the respective schools subject to the condition that, if any of the post which are likely to be abolished in staff fixation in the school fall vacant in the said school, that post should not be filled up on any account (emphasis supplied). Even assuming that the said Government Orders still hold the field and govern the appointment of non-teaching staff in uneconomic Aided U.P Schools in the State, we are of the view that the said Government Orders can have application only when the appointment made is to a vacancy in a post that is likely to be abolished in staff fixation in the particular school. As already noted, in the instant cases, the posts of Peon/Office Attendant were not such as were likely to be abolished in any staff fixation since the post itself is one that is statutorily envisaged irrespective of the student strength in the school concerned. We are, therefore, of the view that the Government Orders referred to by the learned Government Pleader can have no application to the facts and issues in the instant cases.

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That brings us to the question as to whether there is any other Government Order or Circular, which enables the Government to reduce the benefits envisaged under the statute to persons appointed as Peon/Office Attendant pursuant to the statutory provisions under the KER. The learned Government Pleader has not been able to bring to our notice any such Circular and we find that his contentions based on

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 &

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W.A.No.1435 of 2021

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the provisions in the Circulars dated 06.11.2012 cannot be accepted since the Circular admittedly applies only in respect of teaching staff in uneconomic schools in the State. His vehement contention that the mention of the phrase “all vacancies” in the said Circular would take within its ambit vacancies of non-teaching staff also cannot be legally countenanced for the Circular itself indicates that it applies only to teaching staff. At any rate, we are of the view that when the statutory provisions clearly mandate that there has to be a post of Peon/Office Attendant in a U.P. School, and there were in fact vacancies of Peon/Office Attendant in the schools in question which were filled by candidates whose eligibility for the post was never in dispute, the statutory benefit of a regular scale of pay cannot be taken away by a Circular. We are in agreement with finding of the learned Single Judge that the ambit of the statutory provisions cannot be curtailed/restricted by the provisions of any Circular issued by the Government.

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The upshot of the above discussion is that we find the stand of the Educational Authorities/Government that the post of Peon/Office Attendant in aided uneconomic U.P. Schools can be filled only on daily wage basis to be legally unsustainable. So long as there is a vacancy to an established post of Peon/Office Attendant, and the post is not one which is likely to be abolished in any staff fixation conducted in the

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 &

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W.A.No.1435 of 2021

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school, the appointments made to the post have to be approved on regular scale of pay and not on daily wage basis.

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Before parting, we might only observe that in the light of the discussion aforesaid, we find that there was no occasion for the learned Single Judge to set aside the Government Order dated 12.06.2018 produced as Ext.P9 in WP(C).No.2244 of 2020 since the said Government Order applies only to teaching staff and not to nonteaching staff, with which the Writ Petition was concerned. We deem it appropriate, therefore, to vacate the said finding of the learned Single Judge in the judgement dated 20.01.2021 in WP(C).No.2244 of 2020 to the extent it invalidated the said Government Order.

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The Writ Appeals are disposed as above.

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Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE

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Sd/- MOHAMMED NIAS C.P. JUDGE

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mns

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 & W.A.No.1435 of 2021

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APPENDIX OF W.A.NO. 1358/2021

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PETITIONER ANNEXURE

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Annexure A1 TRUE COPY OF JUDGMENT DATED 10.03.2021 IN W.A.NO.119/2020

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RESPONDENTS ANNEXURE:NIL

//TRUE COPY//

P.A TO JUDGE

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W..A.No.1358 of 2021 W.A.No.1346 of 2021 & W.A.No.1435 of 2021

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APPENDIX OF W.A.NO. 1346/2021

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PETITIONER ANNEXURE

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Annexure A1	TRUE COPY OF THE FOR THE ACADEMIC	STAFF FIXATION ORDER YEAR 2016-17
Annexure A2	TRUE COPY OF THE FOR THE ACADEMIC	STAFF FIXATION ORDER YEAR 2017-18
Annexure A3	TRUE COPY OF GO(R DATED 31.8.2021	T0 NO 3825/2021/G.EDN

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RESPONDE	NTS ANNEXU	RES
ANNEXURE	R2(A)	A TRUE 09.02.20	COPY 21 IN	OF THE WP(C).NO	JUDGMENT .41575/201	DATED 8
ANNEXURE	R2(B)	A TRUE 10.03.20	COPY 21 IN	OF THE W.A.NO.1	JUDGMENT 19/2020	DATED
ANNEXURE	R2(C)	A TRUE NO.58604	COPY /J2/1	OF THE C 2/G.EDN.D	IRCULAR B ATED 06.11	EARING .2012
		A TRUE	COPY	OF THE	JUDGMENT	DATED
ANNEXURE	R2(D)	24.01.20	19 IN	WP(C).NO	.21151/201
		A	TRUE	COPY	OF	THE
ANNEXURE	R2(E)	Con.Case AFFIDAVI	(C).N T AND	O.1482/20 EXHIBITS	21(EXCLUDI )	NG
		A TRUE	COPY	OF THE	INTERIM	ORDER
ANNEXURE	R2(F)	PASSED 14.09.20	IN 21	C.C.C.NO.	1482/2021	DATED