Disposed

Eby Thomas v. State of Kerala

Kerala HC3 Aug 2023OP(KAT)/325/2023

Case brief

AI extract

What is this about?

The High Court via Writ Petition under Article 227 reviewed a Tribunal order refusing to adjudicate cadre strength issues regarding temporary posts. The Court dispensed with notices to other respondents and directed the State Government to seek Advocate General advice before granting a personal hearing and decision within six weeks on the petitioner's grievances.

What did the court decide?

Ordered the State Government to seek Advocate General advice and afford a personal hearing, rendering a decision within six weeks on the petitioner's representation.

Eby Thomas Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2023)

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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 ALEXANDER THOMAS

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THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

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THURSDAY, THE 3^RD DAY OF AUGUST 2023 / 12TH SRAVANA, 1945 OP(KAT) NO. 325 OF 2023

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AGAINST THE FINAL ORDER DATED 21.07.2023 IN O.A. (EKM) NO. 1227/2023 OF THE KERALA ADMINISTRATIVE TRIBUNAL,ADDITIONAL

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BENCH AT ERNAKULAM

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PETITIONER/APPLICANT IN O.A(EKM):

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EBY THOMAS AGED 40 YEARS

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S/O THOMAS WORKING AS ASSISTANT EXCISE INSPECTOR, EXCISE RANGE OFFICE, ALAKODE, KANNUR DIVISION, ALAKKODE P.O., KANNUR, RESIDING AT KUMBUKKAL HOUSE, VAYATTUPARAMBA P.O., MUTTIKULANGARA P.O., PALAKKAD, PIN - 678594

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BY ADVS.NIRMAL V NAIR

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ARATHI PRABHAKARAN ENCIL K. SABU

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RESPONDENTS/RESPONDENTS IN O.A.(EKM):

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, SECRETARIAT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

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O.P.(KAT) No. 325 of 2023 - : 2 :-

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2 EXCISE COMMISSIONER EXCISE HEADQUARTERS, BAKERY JCT RD, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM, PIN - 695033

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3 THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM P.O., THIRUVANANTHAPURAM, PIN - 695033

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4 PYARY RAJA S/O RAJA V.N., AGED 38 YEARS, MODAYIL, 191(4/9), PANDALAM, PATHANAMTHITTA, PIN - 689501

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5 MIDHUN MATHEW S/O K.J. MATHAI, KUDIYIRUPPIL HOUSE, MARANGATTUPALLY P.O., PALA, KOTTAYAM, PIN - 686635

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6 GOKUL.R S/O RAGHAVAN NAIR.B, RESIDING AT GOKULAM, EDAPALLYKOTTA P.O., CHAVARA, KOLLAM, PIN - 691583

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R1 & R2 BY SRI. SAIGI JACOB PALATTY, SENIOR GOVERNMENT PLEADER R3 BY SRI. P.C.SASIDHARAN, STANDING COUNSEL

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 03.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(KAT) No. 325 of 2023 - : 3 :-

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ALEXANDER THOMAS & C. JAYACHANDRAN, JJ.

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==================

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O.P.(KAT) No. 325 of 2023

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(arising out of the impugned final order dated 21.07.2023 in O.A. (Ekm) No. 1227/2023 on the file of Kerala Administrative Tribunal, Ernakulam Bench)

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==================

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Dated this the 03^rd day of August, 2023

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JUDGMENT

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Alexander Thomas, J.

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The instant original petition instituted under Article 227 of the Constitution of India is directed against the impugned Ext.P2 final order dated 21.07.2023 rendered by the Kerala Administrative Tribunal, Ernakulam Bench in O.A.(EKM) No. 1227/2023. The sole petitioner herein is the sole applicant in O.A. The respondents herein are the respondents in O.A.

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Heard Sri.Nirmal V. Nair, learned counsel for the petitioner, Sri. Saigy Jacob Palatty, learned Senior Government Pleader appearing for the respondents 1 and 2 and Sri.P.C. Sasidharan, learned Standing Counsel for Kerala Public Service Commission. We are told that notices to contesting respondents 4 to 6 herein/respondents 4 to 6 in O.A., were not issued at O.A. stage. In the nature of orders proposed to be passed by this court in this

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original petition, notices to said respondents will stand dispensed

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O.P.(KAT) No. 325 of 2023 - : 4 :-

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with.

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The prayers in Ext.P1, O.A.(Ekm) No. 1227 of 2023 filed by the petitioner herein before the Kerala Administrative Tribunal, Ernakulam Bench are as follows:-

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“i) To direct the 2^nd respondent to report the vacancies for direct recruitment to the post of Excise Inspector only after determining the cadre strength by excluding all the temporary vacancies created based on Cost of Establishment based in the various posts in the Kerala Excise and Prohibition Service;

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ii) To direct the 2^nd respondent to determine the no.of vacancies earmarked for promotees and direct recruits to the cadre of Excise Inspector after such fixation of cadre strength as sought for in relief no.(i)

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iii) To direct the 2^nd respondent to report the vacancies for direct recruitment from Annexure A16 ranked list to the post of Excise Inspector only after determining the no. of promotees and direct recruitees manning the sanctioned posts of Excise Inspectors at present;

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iv) To direct the 3^rd respondent to keep in abeyance all further proceedings for advice and appointment by direct recruitment from Annexure A16 ranked list to the vacancies of Excise Inspector until such determination as sought for in reliefs (i) to (iii) above;

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v) Grant any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice. vi) Grant the costs of this Original Application.”

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The Tribunal after hearing both sides has rendered Ext.P2

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order on 21.07.2023 in the said O.A., whereby it has been ordered that it is for the applicant to submit necessary representation with regard to his grievances before the competent authority of the State Government and thereupon, the said authority to consider the same and take decisions thereon, in accordance with law

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The petitioner herein/applicant, submits that the Tribunal

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O.P.(KAT) No. 325 of 2023 - : 5 :-

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went wrong in not adjudicating the merits of the matter and should have admitted the O.A. and granted interim stay of the advice and appointment of direct recruits appointed by reckoning cadre strength as inclusive of temporary posts under Rule 156, Part I of the Kerala Service Rules.

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A brief reference to the facts of the case would be pertinent. The petitioner herein is stated to be holding the post of Assistant Excise Inspector in the Excise Department of the State Government. According to him, as per the Rules, the post of Assistant Excise Inspector is a feeder category post for promotion to the next higher category post of Excise Inspector. Further, it is submitted that for the post of Excise Inspector, the method of appointment is by way of direct recruitment through the PSC selection process and promotion from the category of Assistant Excise Inspector and the ratio between direct recruitment and promotion to the said post is 1:1 etc. According to the petitioner, it has already been ordered by the Government in Annexure A14 Government letter No. F1/85/19/TD dated 27.07.2021, that posts which are created in terms of Rule 156 Part 1 of the Kerala Service Rules (for short, the 'KSR'), i.e., the temporary posts cannot be counted as part of the cadre strength as defined in Rule 12(4) of the KSR, Part I. Annexure A14 Government

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letter dated 27.07.2021 reads as follows:-

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The petitioner would allege that while determining the

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quota for direct recruitment, the Department authorities have now counted not only the regular cadre posts but also the temporary posts created under Rule 156 Part I of KSR, and the direct recruitment quota has been assessed on that basis and further that these temporary posts can be abolished at any time and that most of the time, promotees will be the junior most in the post of Excise Inspector and promotees like the petitioner will have to bear the

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O.P.(KAT) No. 325 of 2023 - : 8 :-

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brunt of reversion.

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The core argument of the petitioner is that the aforesaid process of determining the number of post of vacancies in the direct recruitment quota for reporting to the PSC for advice process from the present Annexure A16 rank list dated 14.03.2019 is by determining the cadre strength by counting not only the regular cadre post but also the temporary post as above. It is also pointed out that though currency of Annexure A16 rank list, dated 14.03.2019, for direct recruitment is already over, vacancies have been reported erroneously and far in excess of direct recruitment quota and those vacancies are still pending for advice before the PSC.

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The petitioner would urge that this Court may admit this original petition and grant interim stay of the advice and appointment process.

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Learned Senior Government Pleader has strongly opposed the plea for stay of the employees appointment process and he would urge that the petitioner has already complied with the direction of the Tribunal as per Ext.P2 order by filing Ext.P4 representation dated 22.07.2023 before the second respondent, Commissioner of Excise. It is pointed out that the Tribunal has made it clear in Ext.P2 order

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that it is for the petitioner to submit representation before the

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O.P.(KAT) No. 325 of 2023 - : 9 :-

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competent authority among the respondents 1 and 2, viz., State Government or Excise Commissioner and that since the petitioner is raising issues of determining the cadre strength, he should have raised his grievances by filing representation to the first respondentState Government. On the other hand, he has chosen to file Ext.P3 representation before the third respondent-KPSC, who may not have the competency to decide the issues therein and Ext.P4 is seen filed before the second respondent- Commissioner of Excise.

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After hearing both sides, we are not in a position to hold that the discretionary view taken by the Tribunal at Ext.P2 is unreasonable or illegal. The currency of Annexure A16 rank list is over and even according to the pleadings of the petitioner, the advice process is pending before the KPSC. We do not intend to make any observations on the merits of the matter. Hence, we have observed in the course of hearing that it is for the petitioner to pursue his representation before the first respondent-State Government in the matter.

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Accordingly, Sri. Nirmal V. Nair, learned counsel for the petitioner would submits that the petitioner will immediately file the requisite representation pointing out his grievances, in the light of Annexure A14 Government letter before the competent authority

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O.P.(KAT) No. 325 of 2023 - : 10 :-

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under the State Government, Taxes Department.

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In view of the plea taken up by the petitioner on the basis of Annexure A14 Government letter, we feel that the competent authority/the first respondent-State Government, Taxes Department may seek appropriate advice and opinion of learned Advocate General/Additional Advocate General in the matter. Accordingly, it is ordered that in the event of the petitioner filing representation in the matter before the first respondent-State Government, then the said authority will immediately seek advice of the learned Advocate General/Additional Advocate General in the matter and thereafter, grant opportunity of personal hearing to the petitioner and then take a considerable decision in the matter, taking due notice of the contentions of the petitioner based on Annexure A14 Government letter and the provisions of the Rules and norms cited by him. The decision in that regard shall be rendered by the first respondent within six weeks from the date of filing of such representation and the same shall be immediately communicated to the petitioner.

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Learned Senior Government Pleader submits that to avoid any further delay, he ensure that the matter would be brought to the kind attention of learned Advocate General/Additional Advocate General.

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O.P.(KAT) No. 325 of 2023 - : 11 :-

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No further orders and directions are called for. The impugned order of the Tribunal in Ext. P2 will stand modified to the limited extent as above. With these observations and directions, this original petition will stand disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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Sd/- C. JAYACHANDRAN, JUDGE

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DCS

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O.P.(KAT) No. 325 of 2023 - : 12 :-

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APPENDIX

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PETITIONER'S EXHIBITS & ANNEXURES

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EXHIBIT P1 A TRUE COPY OF THE O.A. (EKM) NO. 1227/2023 ON THE FILES OF THE KERALA ADMINISTRATIVE TRIBUNAL, ADDITIONAL BENCH AT ERNAKULAM

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ANNEXURE A1 A TRUE COPY OF G.O.(P). NO. 113/90/FIN. DATED 15-2-1990 ISSUED BY THE FINANCE DEPARTMENT OF THE 1ST RESPONDENT

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ANNEXURE A2 A TRUE COPY OF THE GO(P)NO. 178/2015/TD DATED 03/10/2015 AND PUBLISHED AS SRO NO. 669/2015 IN THE KERALA GAZETTE EXTRAORDINARY NO. 2257 DATED 05-10-2015

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ANNEXURE A3 A TRUE COPY OF THE G.O. (P) NO. 08/2019/TD DATED 8-2-2019 ISSUED BY THE 1ST RESPONDENT

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ANNEXURE A4 A TRUE COPY OF THE G.O. (P). NO. 27/2019/TD DATED 13-6-2019 ISSUED BY THE 1ST RESPONDENT

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ANNEXURE A5 A TRUE COPY OF G.O.(P). NO. 11/2023/TD DATED 17-2-2023 ISSUED BY THE 1ST RESPONDENT

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ANNEXURE A6 A TRUE COPY OF THE G.O.(P) NO. 94/2022/TAXES DATED 23-11-2022 ISSUED BY THE 1ST RESPONDENT

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ANNEXURE A7 A TRUE COPY OF THE G.O. (MS) NO. 70/2010/TD DATED 20-3-2010 ISSUED BY THE 1ST RESPONDENT

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O.P.(KAT) No. 325 of 2023 - : 13 :-

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ANNEXURE A8 A TRUE COPY OF THE G.O.(MS). NO. 89/2013/TD DATED 27-4-2013 ISSUED BY THE 1ST RESPONDENT ANNEXURE A9 A TRUE COPY OF THE G.O. (MS) NO. 184/2013/TD DATED 4-11-2013 ISSUED BY THE 1ST RESPONDENT ANNEXURE A10 A TRUE COPY OF THE ORDER NO.EXC/1909/2021-XD3 DATED.09/06/2021 ISSUED BY THE 2ND RESPONDENT ANNEXURE A11 A TRUE COPY OF THE ORDER NO. XD3167973/2019 DATED 2-8-2021 ISSUED BY THE 2ND RESPONDENT ANNEXURE A12 A TRUE COPY OF ORDER NO. EXC/2186/2021-XD3 DATED 17-12-2021 ISSUED BY THE 2ND RESPONDENT ANNEXURE A13 A TRUE COPY OF THE DETAILS OF THE TEMPORARY POSTS CREATED IN VARIOUS ESTABLISHMENTS ANNEXURE A14 A TRUE COPY OF THE ORDER NO. F/85/19/TD DATED 27-7-2021 ISSUED BY THE 1ST RESPONDENT ANNEXURE A15 A TRUE COPY OF THE ORDER NO. XD3248635/2020 DATED 22-6-2022 ISSUED BY THE 2ND RESPONDENT ANNEXURE A16 A TRUE COPY OF THE RANKED LIST DATED 14-3-2019 IN CATEGORY NO. 171/2015 ISSUED BY THE 3RD RESPONDENT ANNEXURE A17 A TRUE COPY OF THE FINAL ORDER DATED 12-8-2021 IN O.A. NO. 587/2020 ON THE FILES OF THE HONOURABLE TRIBUNAL ANNEXURE A18 A TRUE COPY OF ORDER NO. EXC/1333/2019/X-D3 DATED 2-11-2021 ISSUED BY THE 2ND RESPONDENT

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ANNEXURE A19 A TRUE COPY OF THE LETTER NO. IDSII(2)/4891/2021/GW DATED 3-11-2021 ISSUED BY THE 3RD RESPONDENT

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O.P.(KAT) No. 325 of 2023 - : 14 :-

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ANNEXURE A20 A TRUE COPY OF THE INTERIM ORDER DATED 7-6-2023 IN O.A. 880/2023 ON THE FILES OF THIS HONOURABLE TRIBUNAL

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EXHIBIT P2 A TRUE COPY OF THE FINAL ORDER DATED 21-7-2023 IN O.A.(EKM). NO. 1227/2023 ON THE FILES OF THE KERALA ADMINISTRATIVE TRIBUNAL, ADDITIONAL BENCH AT ERNAKULAM

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EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 22-7-2023 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

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Exhibit P4 A TRUE COPY OF THE REPRESENTATION DATED 22-7-2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

Eby Thomas v. State of Kerala

Case brief

What is this about?

What did the court decide?

Eby Thomas v. State of Kerala

Case brief

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What did the court decide?

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