Allowed

M. Abdul Jabbar v. Muhammed Shajeer

Kerala HC7 Mar 2022WA/1312/2021

Case brief

AI extract

What is this about?

In this appeal, the court disposed of a challenge to a writ court order directing the Local Self Government to construct a Moorkkanad footbridge. Noting that conflicting government orders have since been settled and sanction granted, the court allowed the tender process to proceed, directing the department to complete the work expediently.

What did the court decide?

Respondents directed to proceed with finalizing the tender and completing the Moorkkanad footbridge construction expeditiously.

M. Abdul Jabbar Vs Muhammed Shajeer — Public Procurement and Tenders | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 7^TH DAY OF MARCH 2022 / 16TH PHALGUNA, 1943

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WA No. 1312 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 1724/2021 OF HIGH COURT OF KERALA

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DATED 8.4.2021

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APPELLANT/ADDL. 5TH RESPONDENT:

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M. ABDUL JABBAR

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AGED 67 YEARS, S/O. ALIKUTTY RESIDING AT MUNDODAN HOUSE, MOORKKANAD P.O., URNATTUGIRI, MALAPPURAM DISTRICT.

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BY ADV S. SHYAM KUMAR

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RESPONDENTS/PETITIONER & RESPONDENTS 1-4:

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MUHAMMED SHAJEER

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AGED 38 YEARS, S/O. ABDURAHIM B, THERATTAMMAL, OORAGATTIRI P.O., AREACODE, MALAPPURAM.

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2 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, THE DEPARTMENT OF FINANCE, SECRETARIAT, TRIVANDRUM, PIN-695 001.

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3 THE SECRETARY TO GOVERNMENT THE DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, SECRETARIAT, TRIVANDRUM, PIN-695 001.

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4 THE CHIEF ENGINEER (ROADS AND BRIDGES) THE DEPARTMENT OF PUBLIC WORKS, PUBLIC OFFICE, MUSEUM JUNCTION, PIN 676505.

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5 THE EXECUTIVE ENGINEER PWD ROAD AND BRIDGES, MALAPPURAM, MALAPPURAM DISTRICT, PIN-676 505.

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BY ADV. K.RAKESH FOR R1

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SRI. K.P. HARISH SR. GOVT. PLEADER FOR R2-5

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.1312/2021

J U D G M E N T

Dated this the 7^th day of March, 2022

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S. Manikumar, CJ.

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Before the writ court, petitioner has sought for the following reliefs:

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i) Call for records leading up to Exhibit P7 and set aside the same by issuing a writ of certiorari or any other writs, orders or directions;

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ii) Direct the 2^nd respondent to issue appropriate directions for completion of work of Moorkkanad Foot Bridge in war footing, strictly in tune with Exhibit P6 G.O. dated 11.1.2021;

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iii) Declare that in view of Exhibit P2 and P3, the entrustment of work to PWD is meaningless and obviously would stifle a public work intended for public convenience and safety.

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After considering the rival submissions, writ court, vide

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judgment in W.P.(C). No.1724 of 2021 dated 8.4.2021, ordered thus:

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“2. Ext.P7 order was passed by the Finance Department directing that the work relating to the footbridge shall be undertaken by the Public Works Department. After the

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W.A.1312/2021

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writ petition came up for consideration, the Government again changed their stand and ultimately issued Ext.P10 letter by the Chief Engineer to the Government, stating that the appropriate authority for undertaking the work is the LSGD and the LSGD has already been given administrative sanction for carrying out the work for a sum of Rs.3 crore. It was also stated that the work is to be done on a Panchayat road and the appropriate authority to undertake the work would be LSGD.

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Petitioner's case itself was that the work has to be undertaken immediately as the absence of a footbridge was causing very serious inconvenience to the school students pointing out thatthere was unfortunate incidents in the year 2008, where school students drowned in the river. It was also stated that there is no sufficient space for the service roads if any other kind of bridge is constructed.

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The learned Special Government Pleader submitted that the work can be completed in tune with Ext.P10 order by the LSGD on the basis of the administrative sanction already issued in Ext.P6.

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Therefore there shall be a direction to the 2nd respondent to see that the work of footbridge is carried out at the earliest point of time, if possible, before the monsoon starts.”

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On 8.11.2021, when the matter came up for admission, we passed the following order:

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W.A.1312/2021

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“Being aggrieved by the directions issued in W.P.(C) No.1724 of 2021 dated 8.4.2021, instant writ appeal is filed.

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Material on record shows that the subject matter pertains to construction of Moorkkanad foot bridge over the Chaliyar river connecting Ooragattiri - Arikkod Grama Panchayats.

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Based on a letter dated 11.5.2020, sent by Ernad M.L.A. to the Hon'ble Minister for Finance, the Government have issued Exhibit.P5 G.O.(Rt)No.4067/2020/FIN dated 5.7.2020, transfering the work of construction of the above said foot bridge to the Local Self Government from Public Works Department. Exhibit.P5 Government Order dated 5.7.2020 reads thus:

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GOVERNMENT OF KERALA

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SUMMARY

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Annexure II of detailed budget estimate 2019-20 - volume to of the details of the public works - without administration sanction - order issued by transferring the work of Moorkkand foot bridge across the Chaliyar river connecting Oorgattiri - Arikkod Panchayths from the public works department at the locals government department

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FINANCIAL DEPARTMENT (BUDGET -K) DEPARTMENT

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G.O.(Rt)No.4067/2020/FIN Dated, Thiruvanthapuram, 05/07/2020

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Reference:1. Letter dated 11.05.2020 made by Ernad MLA Mr. P.K. Basheer to Hon'ble Minister Finance department.

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ORDER

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The MLA Ernad Mr.P.K. Basheer by virtue of the above referred letter has requested to transfer the work namely

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W.A.1312/2021

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Moorkkanad foot bridge across the Chaliyar river connected Oorgattiri Arikkod grama panchayth sanctioned as per the Annexure II of the detailed budget estimate 2019-20 - volume II of the detailed public works, serial No. 1549 from the public works department of local government department.

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The government as examine the matter and accordingly the above work has been transferred to the local government department from the public works department and ordered accordingly.

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(By order of the Governor)

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SHOBHA VR

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JOINT SECRETARY

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Subsequently, it appears that a letter dated 30.7.2020 has been submitted by the then President, Ooragattiri Grama Panchayat, and that the same has been placed before the Hon'ble Minister for Finance.

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Considering the above, Government have issued orders in G.O.(Rt) No.7278/2020/FIN dated 15.12.2020, cancelling G.O.(Rt) No.4067/2020/FIN dated 5.7.2020 and ordered to retain the above said work with the Public Works Department.

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When the Government have already ordered retention of the above said work by the Public Works Department, it appears that the Government have processed letter No.DB4, 13403/20 C.E./LID &E.W dated 30.11.2020 of the Chief Engineer, Local Self Government Department, and sanctioned a sum of Rs.3 Crores for the

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W.A.1312/2021

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construction of foot bridge. The said amount has been sanctioned on the basis of the DPR prepared by the Chief Engineer, Local Self Government.

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G.O.(Rt.)No.69/2021/L.S.G.D dated 11.1.2021 is extacted

hereunder:

GOVERNMENT OF KERALA

SUMMARY

Local self Government Department Ernad legislative constancy order issued granting administrative sanction to the Moorkkanad foot bridge across the Chaliyar river in Oorgattiri grama panchayth in Arikkod block.

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LOCAL SELF GOVERNMENT DEPARTMENT (D.D)

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G.O. (Rt)No.69/2021/L.S.G.D. Dated, Thiruvanthapuram 11/01/2021

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Reference: 1. The work arried as Serial No.1549 in the Annexure II of the detailed financial budget for the year 2019-20, in the volume II.

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G.O. (Rt)No.344/2020 dated 11.01.2020

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Circular No.70/2020 dated 05.07.2020

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G.O.(Rt) No. 4067/2020 dated 05.07.2020

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letter. No.DB 4, 13403/20 C.E/LID& E.W dated 30.11.2020 made by the chief Engineer local self government department.

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ORDER

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The work namely moorkkand foot bridge Chaliyar river connecting Orgattiri Arikkod grama panchayth included in the volume II of the Annexure II of financial budget 2019-20 was transferred to local self government department from in the public work department, based on the request of the Hon'ble

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W.A.1312/2021

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MLA Ernad, vide reference No.2 for the said work the chief Engineer local self government has prepared the DPR for 3 Crores rupees and submitted reference No.5 before the government for sanction.

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Government has examined the matter in details based on the effort details circumstances, reference No.2 order and reference No.3 circular administration has been granted for construction of the Moorkkanad foot bridge across the Chaliyar river connecting the Oorgattiri Arikkod grama panchayth with an amount of Rs. 3 Crores, as provision under the Volume II, Annexure II of the financial budget 201920.

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The Expenditure work shall be made from the account 451600-800-92

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(By ordr of the Governor) Bijukuttan M.S. Additional Secretary.”

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From the above, it could be seen that when the Government have issued Exhibit P7 Government Order datd 15.12.2020, ordering to retain the work of construction of foot bridge across Chaliyar river connecting the Oogattiri and Arikkod Grama Panchayats, with the Public Works Department, based on the proposals, administrative sanction has been accorded.

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Material on record further discloses that in as much as sanction has been accorded for the construction work, based on the proposals of the Chief Engineer, Local Self Government, Chief Engineer, Public Works Department, Bridges, Thiruvananthapuram,

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W.A.1312/2021

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has written Exhibit P10 letter dated 1.2.2021, to the Secretary to the Government, Public Works Department, Government Secretariat, Thiruvananthapuram, stating that it would be advisabkle to retain the work with the Local Self Government.

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For brevity, letter dated 1.2.2021 of the Chief Engineer, Public Works Department, Bridges, Thiruvananthapuram – respondent No.4, sent to the Secretary to the Government, Department of Local Self Government Institutions, Secretariat, Thiruvananthapuram – respondent No.2, is reproduced:

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CHIEF ENGINEER'S OFFICE, PUBLIC WORKS DEPARTMENT, BRIDGES, PUBLIC OFFICE, MUSEIUM VIKAS BHAVAN P.O. THIRUVANTHAPURAM-695033 PHONE:0471 2320144 E-MAIL:[email protected] Website:www.pwd.kerala.gov.in.

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No.CE/BR/12379/ MNJ/2018

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date: 01/02/2021

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From, Chief Engineer To, Secretary to Government, Public works Department, Government Secretariat Thiruvanthapuram.

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Sir, Subject: With regard to construction of Moorkkand School kadavu bridge across the Chaliyar river.

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W.A.1312/2021

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Hint.1. G.O. (Rt) No.4067/2021/Fin/Tym/ date 05/07/2020 2. G.O. (Rt) No.7278/2020/Fin/Tym date 05/07/2020

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Letter dated 20.01.2020 hearing the same no. issued by this office. 4. G.O. (Rt)No.69/2021/PWGD/date 11/01/2021

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WPC NO.1724/2021 filed by Mr. Muhammed Shajeer

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Seeking your attention to the above references as per the reference No.2 government order request has made for administration sanction for 600 Crores in price ID VR-2020-2097. As per reference No.4 administration sanction has been accorded 3 crores by the local self government department in the light of above circumstances as the proposed construction is being is to be made in a panchayth road it will be advisable to retain the work with the locals self government department and further informed that no steps to be taken on reference No.3 communication issued from this office of administrative sanction.

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Your Sincerely,

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Sd/

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As stated supra, work has been directed to be retained with the Public Works Department. However, steps have been taken for constructing the Moorkkanad Bridge by the Local Self Government.

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In addition to the above, Mr.K.P.Harish, learned Senior Government Pleader, submitted that e-tender for the above said work was notified on 23.2.2021 and that the tender bid is likely to be opened today. He further added that the technical bid opening is

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W.A.1312/2021

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scheduled on 11.11.2021.

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Material on record discloses that Exhibit P7 Government Order dated 15.12.2020, has not been considered or referred to by the Government, while issuing Exhibit P6 G.O.(Rt.)No.69/2021/L.S.G.D dated 11.1.2021, according administrative sanction for the above said work to the Local Self Government. So also, no reference in this regard has been made in Exhibit P10 letter of the Chief Engineer, Public Works Department, addressed to the Secretary to the Government, Thiruvananthapuram.

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Learned Senior Government Pleader is directed to ascertain from the Government as to how the Local Self Government can proceed with the construction when the work has been directed to be retained with the Public Works Department in terms of Exhibit P7. As regards the processing of tender, decision be kept in abeyance.”

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On this day, when the matter came up for further hearing, in response to our query made in paragraph No.14 of the order dated 8.11.2021, based on the averments made in the statement filed on behalf of Secretary to the Government Department of LSGI, Thiruvananthapuram, respondent No.3, Mr. K.P. Harish, learned Senior Government Pleader submitted that Exhibit P7, G.O(Rt.) No.7278/2020/fin dated 15.12.2020 has been

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W.A.1312/2021

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cancelled and that Government have reassigned the work to Local Self Government Department vide G.O(Rt) No.4331/2021/Fin dated 7.6.2021.

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Learned Senior Government Pleader further submitted that Exhibit P7 is no longer in force since the Department itself has revisited that order. Therefore, there is no legal impediment for the local self Government to carryout the work of constructing Moorkkanad footbridge across Chaliyar river connecting the Oorgarttiri Arikkod Panchayats. Submission of learned Senior Government Pleader is placed on record.

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In the light of the subsequent developments, prayers 1

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and 3 sought for in the writ petition have become infructuous. Now it is for the Local Self Government to construct the said footbridge as expeditiously as possible, taking note of the grievance expressed in the writ petition.

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As administrative and financial sanction had already been granted to the Local Self Government, with an amount of Rs.3 Crores, from the financial budget of 2019-2020, Department of Local Self Government Institutions, Thiruvananthapuram,

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W.A.1312/2021

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respondent No.3 in this appeal is directed to proceed further.

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Earlier, in our order dated 8.11.2021, we directed that the decision of the processing of the tender be kept in abeyance. Now, in view of the subsequent orders taken note of, respondents are directed to proceed further, finalise the tender, if it is in order, commence the work of construction of Moorkkanad footbridge across Chaliyar river, and complete the same as expeditiously as possible, taking note of the grievance expressed by the petitioner. In view of the subsequent developments, writ appeal is disposed of.

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Sd/S. Manikumar, Chief Justice

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Sd/Shaji P. Chaly, Judge

sou.

W.A.1312/2021

APPENDIX

PETITIONER EXHIBITS

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Exhibit P1TRUE COPY OF THE GO(Rt) NO.
4331/2021/Fin DATED 07.06.21.

M. Abdul Jabbar v. Muhammed Shajeer

Case brief

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M. Abdul Jabbar v. Muhammed Shajeer

Case brief

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