Dismissed

Sajeev.P.v v. the Secretary

Kerala HC21 Jul 2023DBP/17/2020

Case brief

AI extract

What is this about?

In consolidated civil writ petitions and a DBP concerning temple employees' benefits (vazhipadu vihitham), the High Court of Kerala dismissed the petitions and closed the DBP as infructuous following the Cochin Devaswom Board's order dated 14.12.2022 restoring the practice, without ruling on the order's legality.

What did the court decide?

Writ petitions WPC Nos. 18697 of 2012, 9807, and 16041 of 2013 dismissed as infructuous; DBP No. 17 of 2020 closed.

Sajeev.P.v Vs the Secretary — Pension and Retirement Benefits | Kerala HC (2023)

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN &

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 21^ST DAY OF JULY 2023 / 30TH ASHADHA, 1945 WP(C) NO. 18697 OF 2012

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PETITIONER/S:

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K.V.VISHNU NAMBUDHIRI, AGED 60 YEARS MELSANTHI, VALANJAMBALAM DEVI TEMPLE, ERNAKULAM, RESIDING AT KOOTTAMBILLY MANA, OORAKAM.

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BY ADVS. SRI.M.P.SREEKRISHNAN SMT.M.H.BINDU

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RESPONDENT/S:

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1 THE COCHIN DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, OFFICE OF THE COCHIN DEVASWOM BOARD, THRISSUR-680 020.

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2 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.695 001.

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BY ADVS.

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SRI.C.E.UNNIKRISHNAN,SC,COCHIN DEV.BOAR SRI.C.E.UNNIKRISHNANSCCOCHIN DEV.BOAR SRI.N.RAGHURAJSCCOCHIN DEVASWOM BOARD SRI.KRISHNA MENON, SC, COCHIN DEVASWOM BOARD SRI.K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD

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OTHER PRESENT:

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SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ; SRI K.P.SUDHEER - STANDING COUNSEL- COCHIN DEVASWOM BOARD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.07.2023, ALONG WITH DBP.17/2020, 9807/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN &

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 21^ST DAY OF JULY 2023 / 30TH ASHADHA, 1945 WP(C) NO. 9807 OF 2013

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PETITIONER/S:

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USHA BRAHMANI AMMA AGED 56 YEARS VARANAKUDUTH PUSHPAKAM, KUNNAILLISSORY, PUIYANAM P.O., ANGAMALY-683 752.

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BY ADVS. SRI.M.P.SREEKRISHNAN SMT.M.H.BINDU

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RESPONDENT/S:

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1 THE COCHIN DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, OFFICE OF THE COCHIN DEVASWOM BOARD, THRISSUR-680 020.

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2 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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BY ADVS.

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SRI.KRISHNA MENON, SC, COCHIN DEVASWOM BOARD SRI.AJITH KRISHNAN, SC, COCHIN DEVASWOM BOARD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.07.2023, ALONG WITH WP(C).18697/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN &

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 21^ST DAY OF JULY 2023 / 30TH ASHADHA, 1945 WP(C) NO. 16041 OF 2013

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PETITIONER/S:

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1 E.P.PAREMESWARAN MOOTHATHU NENMANASSERY ILLAM, PALIYAM ROAD, COCHIN-16.

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2 K.P.DAMODARAN MOOTHATHU KIZHAKKE ILLAM, DURBAR HALL ROAD, COCHIN-16.

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3 T.RAJENDRAN KALIKA APARTMENTS, CHERUPARAMBATH 2ND CROSS ROAD, KADAVANTHARA, COCHIN-11.

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BY ADV SRI.M.P.SREEKRISHNAN

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RESPONDENT/S:

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1 THE COCHIN DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, OFFICE OF THE COCHIN DEVASWOM BOARD, THRISSUR-680020.

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2 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695001.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.07.2023, ALONG WITH WP(C).18697/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN &

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 21^ST DAY OF JULY 2023 / 30TH ASHADHA, 1945 DBP NO. 17 OF 2020

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PETITIONER/S:

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SAJEEV.P.V, AGED 50 YEARS SECREATRY, COCHIN DEVASWOM BOARD EMPLOYEES ORGANISATION, E-3 DEVASWOM QUARTERS, WADAKKENCHIRA, THRISSUR, 680020

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BY ADV SUO MOTU

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RESPONDENT/S:

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THE SECRETARY COCHIN DEVASWOM BOARD, THRISSUR

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BY ADV SRI.K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD

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THIS DEVASWOM BOARD PETITION HAVING BEEN FINALLY HEARD ON 21.07.2023, ALONG WITH WP(C).18697/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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JUDGMENT

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Anil K. Narendran, J.

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W.P.(C).No.18697 of 2012:- The petitioner, who is the Melsanthi of Valanjambalam Devi Temple, which is a temple under the management of Cochin Devaswom Board, has filed this writ petition seeking a writ of certiorari to quash Ext.P2 order dated 29.03.2012 of the 1^st respondent Cochin Devaswom Board to the extent it cancels ‘vazhipadu vihitham’ paid to the temple employees, as the same is illegal, arbitrary and against the religious practice/observance. The petitioner has also sought for a writ of mandamus commanding the respondents to provide pay and allowances to temple employees under Cochin Devaswom Board equal to that of the pay and allowances enjoyed by temple employees working in similar posts and doing similar works in the temples under the management of Travancore Devaswom Board.

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1.1 On 08.08.2012, when this writ petition came up for admission, this Court admitted the matter on file. The learned Standing Counsel for Cochin Devaswom Board took notice for the 1^st respondent. The learned Government Pleader took notice for the 2^nd respondent.

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1.2 The 1^st respondent has filed a counter affidavit dated 18.08.2012, followed by an additional counter affidavit dated 31.03.2013, producing therewith Exts.R1(a) and R1(b)

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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documents. The 1^st respondent has filed I.A.No.1 of 2022 producing therewith a copy of Annexure R1(c) proceedings dated 26.03.2022 of the Board, whereby salary revision of the temple employees was implemented with effect from 01.04.2021.

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W.P.(C).No.9807 of 2013:- The petitioner, who

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performs the ritual ‘Mandapathil Pattu’ in Chottanikkara Bhagavathi Temple, has filed this writ petition seeking a declaration that the right to perform the ritual Mandapathil Pattu in Chottanikkara Bhagavathi temple exclusively and absolutely belongs to her family, i.e., Varanakudath Pushpakam, hereditarily. The petitioner has also sought for a declaration that denial of vazhipadu vihitham and reduction in the payment of remuneration to the petitioner for performing the ritual Mandapathil Pattu in Chottanikkara Bhagavathi Temple by the Cochin Devaswom Board is illegal, arbitrary and without jurisdiction. The petitioner has also sought for an order directing the Board to restore vazhipadu vihitham, other benefits and remuneration already given to the petitioner in connection with the performance of the ritual Mandapathil Pattu.

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2.1. On 10.04.2013, when this writ petition came up for

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admission, this Court admitted the matter on file. The learned Standing Counsel for Cochin Devaswom Board took notice for the 1^st respondent. Urgent notice was ordered to the 2^nd respondent

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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State. This Court passed an interim order directing the 1^st respondent to retore Vazhipadu Vihitham, remuneration and other ancillary benefits already given to the petitioner in connection with the performance of ritual “Mandapathil Pattu”, which will be subject to the result of the writ petition.

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2.2. The 1^st respondent has filed a counter affidavit dated 02.02.2014 producing therewith Exts.R1(a) to R1(c) documents.

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W.P.(C) No.16041 of 2013:- The petitioners, who are performing Thrikkovil Pravrithi as Karaima right in Ernakulam Siva Temple, have filed this writ petition seeking a declaration that the emoluments and remuneration received by them for the performance of Karaima service in Ernakulam Siva Temple shall not be taken away by virtue of the provision for cancellation of vazhipadu vihitham in Ext.P2 order dated 29.03.2012 of the Cochin Devaswom Board.

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3.1. On 28.06.2013 when this writ petition came up for admission, this Court admitted the matter on file. The learned Standing Counsel for Cochin Devaswom Board took notice for the 1^st respondent and the learned Government Pleader took notice for the 2^nd respondent.

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DBP No.17 of 2020: - This DBP is registered suo motu based on CDB Report No.14 of 2020 in Complaint No.206 of 2019

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of the learned Ombudsman, regarding vazhipadu vihitham

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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payable to employees in the temples under the management of the Cochin Devaswom Board. The report filed by the learned Ombudsman reads thus;

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''1. It is stated that from July 2018 onwards the rate of vazhipadu is increased in all the temples. It is a case that depending upon the special nature of the work a small portion of the amount fixed for vazhipadu is paid to Santhi, Kazhakam, Pathram theppu, etc. Despite the increase made in the vazhipadu rate, no increase is made in the Vihitham paid to the lowest categories for the past 20 years. It is stated that the Vazhipadu vihitham payable to the temple employees were stopped or reduced whereas the office establishment staff were paid special duty allowance as per the rate revised by the Government from time to time. Hence it is requested for restoration of the benefit illegally stopped. Request made in this behalf is not considered. Hence this petition.

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On this issue the Secretary of the Board filed a reply producing the copy of the Board Order. He stated that the matter of payment of Vihitham is being discussed with all Asst. Commissioners and on the basis of orders of High Court and proceedings of the Board more discussions to be made and hence requests for further time. Subsequently as per the board order dated 19.12.2019 it is stated that since the Writ petition challenging the stoppage of the Vihitham is still pending before the Honourable High Court and no stay is granted, hence further examination is found necessary. Copy of the complaint and the board order dated 19.12.2019 are produced and marked as O1 and O2.

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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On consideration of the matter it is found that the Writ Petition 18697 of 2012 filed by one Sri. Vishnu Namboothiri, who challenged the cancellation of the Vazhipadu Vihitham, as illegal and arbitrary. However, as per the order dated 4^th September 2018, the said Writ Petition was dismissed for default on the premise that the petitioner have lost interest in prosecuting in the matter. However, it is observed that the matter is not decided on merit and without entering a finding thereto the Writ Petition is dismissed. A copy of the order of the Honourable High Court is produced as O3. However, it is submitted by Devaswom that the MJC was subsequently filed and still pending.

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In this connection, it is submitted that Vihitham paid to the temple employees as part of the custom or practice being a customary right vested on them even at the time of formation of the CDB a pre-existing right can be stopped only in the ways (1) Either by a statutory provision or (2) by agreement of parties. There is no case that the Vihitham was stopped leased on any provision of law. There is no agreement between the parties either and nothing is produced. If the higher pay scale is introduced in lieu or vihitham, then the employees was to be given an option either to accept the existing scale of pay and continue to receive the vihitham or to opt for the new scale. But no such option is also seen given to the employees.

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In this connection a writ petition is filed before the Honourable High Court against the stoppage of vihitham is pending consideration in W.P(C)No.32317 of 2019. However, the Writ Petition No.18697 of 2012 in which MJC is also pending as stated by the Devaswom Board. Hence the matter is placed before the Honourable High Court for

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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appropriate orders for consideration as the issues are already pending consideration before the Honourable High Court.''

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4.1. On 16.03.2020, when this DBP came up for

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consideration, the respondent was directed to file his response in respect to the issue involved in the DBP.

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4.2. The respondent has filed an affidavit dated

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05.01.2022, producing therewith Annexure R1(a) and R1(b) documents.

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During the pendency of the above writ petitions and the DBP, the Cochin Devaswom Board passed an order No.M4.11295/11 dated 14.12.2022, modifying Ext.P2 order

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dated 29.03.2012, retaining the practice of payment of vazhipadu vihitham. A copy of the said order is produced as Ext.R1(d) along with I.A.No.1 of 2023 filed in W.P.(C)No.18697 of 2012.

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Heard the learned counsel for the petitioners in the respective writ petitions, the learned Standing Counsel for Cochin Devaswom Board and also the learned Amicus Curie for the learned Ombudsman.

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The learned counsel for the petitioner in W.P.(C)Nos. 18697 of 2012, 9807 and 16041 of 2013, would submit that in

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view of the order dated 14.12.2022 passed by the Cochin

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Devaswom Board, the relief sought for in these writ petitions has

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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become infructuous and therefore, the writ petitions may be dismissed as infructuous.

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Having considered the submissions made at the bar, W.P.(C) Nos.18697 of 2012, 9807 and 16041 of 2013 are dismissed as infructuous, in view of Ext.R1(d) order dated 14.12.2022, produced along with I.A.No.1 of 2023 in W.P.(C)No.18697 of 2012 and DBP No.17 of 2020 is closed in view of the said order; however, without expressing anything as to the legality or otherwise of that order dated 14.12.2022.

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Sd/ANIL K. NARENDRAN, JUDGE

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Sd/P.G. AJITHKUMAR, JUDGE

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Dxy

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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APPENDIX OF WP(C) 18697/2012

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RESPONDENT EXHIBITS

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EXHIBIT R1 ( d ) TRUE COPY OF ORDER NO. M4. 11295/11 DATED 14/12/2022 ISSUED BY THE FIRST RESPONDENT

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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APPENDIX OF WP(C) 9807/2013

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PETITIONER EXHIBITS

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P1 : COPY OF THE ORDER DTD.29.3.2012 OF RESPONDENT BOARD. P2 : COPY OF THE ORDER DTD.12.9.2012 IN WPC NO.18697/2012. P3 : COPY OF THE REPRESENTATION DTD.18.4.2012 OF THE PETITIONER. P4 : COPY OF THE INSTRUCTIONS DTD.14.6.2012 FURNISHED BY THE COCHIN DEVASWOM BOARD. P5 : COPY OF THE CERTIFICATE ISSUED BY THE KSHETHRAM THANTHRI BRAHMASRI VASUDEVAN NAMBUTHIRIPAD OF PULIYANNOOR VILLAGE, DTD.11.1.2013.

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WPC Nos. 18697 of 2012, 9807, 16041 of 2013 & DBP 17 of 2020

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APPENDIX OF WP(C) 16041/2013

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PETITIONER EXHIBITS

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EXHIBIT-P1: A TRUE COPY OF THE BOOKERNAKULAM KSHETHRA MAHATMYAM PUBLISHED BY LATE T.K.KRISHNAMENON IN 1930. EXHIBIT-P2: A TRUE COPY OF THE ORDER DATED 29.3.2012 ISSUED BY THE 1ST RESPONDENT.

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EXHIBIT-P3: A TRUE COPY OF THE ORDER DATED 12.9.2012 IN WP(C) NO.18697/2012 OF THIS HON'BLE COURT.

Sajeev.P.v v. the Secretary

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Sajeev.P.v v. the Secretary

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