High Court of Judicature at Allahabad
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Devendra Kumar Pandey v. Hon'Ble Highcourt Of Judicature At Alld Thru R.G. And Others - WRIT - A No. 45922 of 2004  RD-AH 12985 (27 July 2007)
Judgment reserved on 20.4.2007
Judgment delivered on 27.7.2007
CIVIL MISC. WRIT PETITION NO. 45922 OF 2004
D.K. Pandey - Petitioner
Hon'ble High Court of Judicature
at Allahabad and others - Respondents
Hon'ble Sunil Ambwani, J.
1. Heard Shri Arvind Tripathi, learned counsel appearing for the petitioner; Shri Amit Sthelkar appears for the High Court-respondent nos. 1 and 2; Shri Krishna Ji Khare for respondent nos. 2, 13, 14; Shri Arvind Srivastava for respondent nos. 5 to 8 and Shri Neeraj Tiwari for respondent no. 9.
2. The petitioner applied for selections to the post of Routine Grade Clerk (RGC) in the establishment of the High Court at Allahabad in pursuance of advertisement No. 3/2004 dated 17.4.2004 for 79 posts, published by the then Registrar General of the Court. By this writ petition, the petitioner has prayed for writ of certiorari calling the record and setting aside the appointments of respondent nos. 3 to 14 made by order of Hon'ble Chief Justice, singed by Registrar General on 26.7.2004, 1.9.2004 and 2.9.2004 without holding any recruitment as process of selections as provided under Rule 8 (a) of Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules 1976 (Rules of 1976) through competitive examination and promotion from Class IV employees. The appointments were made at the time when the selections to 79 posts of RGC vide advertisement dated 17.4.2004 was pending.
3. The petitioner has challenged these appointments on the ground of arbitrariness, and favourtism during the pendency of the regular selections by direct appointments. He submits that while the regular selections were kept pending, Hon'ble Chief Justice went on filling up these posts in exercise of his residuary and extraordinary powers under Rules 41 and 45 of the Rules of 1976 to favour the employees, who are close to him and to appease the employees association and the office bearers of the Bar Association including President. It is submitted that the powers vested in Hon'ble Chief Justice under Rules 41 and 45 are to be used for extraordinary and emergent circumstances and should not be exercised for making appointments of the wards of persons close to him and thereby misusing the trust created in his office.
4. On 24.5.2005, the Court, after exchange of counter and rejoinder affidavits of respondent no. 1, passed following orders issuing notices to respondents no. 3, 5 to 14 and made the appointments subject to the result of the writ petition. A further direction was issued that these appointments shall not be regularised or confirmed until the disposal of the writ petition, unless they are appeared or selected in the examination/test which has been advertised.
"Counter and rejoinder affidavits have been exchanged between the petitioner and respondents 1 & 2. Notices have not been issued to the remaining respondents so far.
The establishment of the High Court had advertised 79 vacancies of Routine Grade Clerks with a note that these may increase or decrease, vide advertisement No. 3104 dated 17.4.2004. Sri Amit Sthelkar, learned counsel for the respondents 1 & 2 informs that 32556 applications have been received ( para 8 of the counter affidavit of Sri Pramod Kumar Goel, HJS, Joint Registrar (Inspection), High Court of Judicature at Allahabad). The written examination has not been held so far and that the selections have been delayed. The petitioners have prayed for expediting the recruitment process. It is contended that in the meantime, the respondents 3 to 14 have been appointed without following any procedure of selection and without adopting any criteria or method for ad hoc appointments and thus these appointments be quashed and that during the pendency of the writ petition these appointments may be kept in abeyance.
Sri Amit Sthelkar has not given any reason either in the counter affidavit or in oral submission as to why the examination process has been delayed, and has not given any indication of the period within which the recruitment may be finalized. He submits and has produced the original record of the appointment of respondents 3, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14.
A perusal of this record shows that these respondents namely Sri Ajit Kumar Srivastava, Sri Anand Pal Singh, Sri Sarad Kumar, Sri Tej Singh, Sri Abhishek, Sri Barmeshwar Pandey, Sri Sandeep Kumar Ojha, Smt. Shushma Singh (who was earlier appointed as Class IV employee) Sri Samyadeep Goswami, Sri Santosh Kumar, Sri Vikash Tanu Goshwani had applied for appointment as Routine Grade Clerk. These appointments have been made under the orders of the Hon'ble the Chief Justice under Rule 45 of the Allahabad High Court Officers and Staff Rules, 1976. The Hon'ble the Chief Justice by his orders in May and August, after the advertisement was issued has appointed these persons under Rule 45 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976, on ad hoc basis. Whereas the appointment of Sri Ajit Kumar Srivastava, Sri Anand pal Singh, Santosh Kumar Tiwari and Abhishek have been made on the condition that these appointments are adhoc and they will be permitted to appear in the direct recruitment of Routine Grade Clerk, their services shall be regularised and confirmed only if they are selected in the examination/test, no such condition precedes the other appointments.
Prima facie I find substance in the contention of learned counsel for the petitioner that once an advertisement has been made, it is appropriate to await the result of the selections and not to make any ad hoc arrangement. Any ad hoc appointment made during the process of scrutiny of application and selection discriminates the persons who have applied, and causes concern over the reasons of delay in the process of selection.
In the present case, it is alleged that some of these adhoc appointees are near relatives of the employees and persons having connection with the High Court. In the counter affidavit the contents of para 11 of the writ petition are not denied. In this paragraph it is stated that Sri Anand Pal Singh is the son of Sri Balwant Singh, Section Officer of Account Section; Sri Santosh Kumar is the son of Sri Anmol Tiwari, Assistant Registrar (Protocol), Sri Sharad Kumar is son of Sri Harish Kumar Srivastava, Stamp Reporter; Sri Sandeep Kumar Ojha is son of Sri Kashi Dhar Ojha, Joint Private Secretary to the Chief justice, and Sri Samya Deep Goswami is son of Sri P.K. Ganguli, Joint Private Secretary to Hon'ble the Chief Justice, Sri Barmeshwar Pandey is close relative of Sri C.L. Pandey, President, Bar Association High Court and Sri Tej Singh is brother of Sri Hem Singh, Junior Vice President of Employees Union, Sri Ajit Kumar Srivastava is the brother in law of Sri Yogesh Kumar Srivastava, Senior Vice President of Employee Association and Sri Abhishek is close relative of Sri Nishith Verma, Joint Secretary of the Employees Union. The Court is not concerned with the appointment of Abha Khare who was appointed on compassionate ground and Sri R.P. Patel, the respondent no. 5, who was appointed as Officiating Section Officer (Cash) as these persons are appointed by a separate procedure and are not the candidates to the post of Routine Grade Clerks, for which application shave been invited.
Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 provides for appointment of Routine Grade Clerk through competitive examination by the Committee constituted by the Hon'ble the Chief Justice. The power of Hon'ble the Chief Justice to make a hoc appointments cannot be questioned. Counsel for the petitioner is, however, correct in submitting that all the statutory powers vested in authorities must be exercised fairly and reasonably and in accordance with rules. Once the selections have been advertised and there is no explanation for delay in holding the selections, the scope of this power for ad hoc appointments, pending such selection requires to be considered and decided in this writ petition.
Having regard to the facts and circumstances, let notice be issued to the respondents 3 and 5 to 14 to be served through the Registrar General of the Court. They shall file counter affidavits within four weeks. Rejoinder affidavit may be filed within one week thereaftern. The matter shall be listed for admission on 19.7.2005. In the meantime it is provided that the appointment of respondents 3, 5 to 14 shall be subject to the result of this writ petition. They shall not be regularised or confirmed until the disposal of this writ petition unless they appear and are selected in the examination/test which has been advertised."
5. The High Court and the private respondents have filed their counter affidavits in which they have relied upon the residuary and extraordinary powers of Hon'ble Chief Justice under Rules 41 and 45 of the Rules of 1976, to make appointments irrespective of the pending selections. They have also challenged the standing of the petitioner to file the writ petition.
6. The interim order dated 24.5.2005 was challenged by Shri Barmeshwar Pandey and 4 others (respondents in this writ petition) in a Special Appeal on the ground that with the cancellation of the selections advertised on 17.4.2004, the writ petition has become infructuous. The Special Appeal No. 987 of 2006 was heard by Hon'ble Chief Justice, (whereas he was impleaded as the party to the special appeal) and that the Bench hearing the Special Appeal passed the following orders:
"The appeal from the interim order dated 24th of May, 2005 is summarily disposed of.
The appellants before us, who were the materially affected private respondents in the writ, had been given ad hoc appointments as routine grade clerks and that was the grievance of the writ petitioner.
In the impugned interim order the Hon'ble Single Judge laid down that even powers under Article 229 are to be exercised by the Hon'ble the Chief Justice fairly and reasonably. Mr. Pandey for the appellants submits that the position might need re-examination in view of the case reported at (2006) 1 S.C.C 779 (Union of India and others vs. Kali Dass Batish and another) and he placed passages, specifically, paragraph 14 thereof.
His Lordship also ordered that the ad hoc appointments would not be regularised or confirmed until disposal of the writ petition unless the appellants-private respondents "appear and are selected in the examination/test which has been advertised."
Several developments have taken place which appear to have rendered the writ petition infructuous or out of date now. The writ petitioner-respondent submits before us that the mandamus prayer in the writ petition permitting him to appear in the examination has become infructuous but according to him the other prayers are still alive. We have our doubts in this regard also.
By a proclamation dated the 6th of December, 2005 the then learned Registrar General has cancelled the advertisement No.03-2004, which was at the root of the interim order in operation which is the impugned order before us.
As such, it is declared that the impugned interim order has become unworkable because of the changed circumstances and as on date all parties are free to proceed in accordance with law and no workable restraint can be spelt out from the interim order which ties down the hands of anybody to any extent at all.
Regarding the further progress of the matter the appellants submitted that the writ petition should not have been treated as heard in part on 19.7.2005, which was to months after the passing of the detailed order and on a date when the appellants, i.e, the affected parties had not been served. We are of the opinion that an Hon'ble Single Judge has discretion in the matter and the discretion can hardly be interfered with by anybody; we are also of the respectful opinion that in general matters are not treated as heard in part until at least all parties appear, or at least substantially all parties appear and more often a not the tying up of the case is ordered only after the pleadings are complete and the matter is ripe for final disposal, and is then heard for a sufficient length of time.
With these orders and observations, the appeal is finally disposed of.
Dt. 4.9.2006 Ajoy Nath Ray, C.J.
Ashok Bhushan, J."
7. The matter came back to the Court to be heard with the developments namely that on 6.12.2005, the Registrar cancelled the advertisement No.3/2004 and that the Rules of the Court were amended. The fresh advertisement No. No.1/ARO/2006 dated 31.7.2006 was issued for filling 150 vacant posts of 'Assistant Review Officer' in the pay scale of Rs. 4500-125-7000 plus allowances with amended higher qualification of Bachelors' Degree of a University established by law in India (in place of Intermediate), and with knowledge of computer. More than 30,000 persons have applied for this selection, which is still pending at the stage of preparing a data base of the applicants. At present there are more than 300 vacant posts of Class III employees in the establishment.
8. Shri Arvind Srivastava, appearing for respondent no. 5 to 8, submits that with the changed nomenclature, pay scale and qualification of the post and with fresh advertisement in pursuance to which petitioner is neither eligible, nor has applied, the writ petition has become infructuous. He submits that the petitioner, was not serious in pursuing his cause and is not left with the competence to challenge the appointments made by Hon'ble Chief Justice. According to Shri Arvind Srivastava, the appointments made by Hon'ble Chief Justice under his residuary and extraordinary powers in the exigency of service, cannot be challenged by a person, who is not a candidate for appointment and that no public interest petition is maintainable in service matter. He has also relied upon a judgment in Writ Petition No. 21353 of 2004 Ashwini Khare vs. State of UP and two other connected petitions in which learned Single Judge of this Court repelled the challenge made by petitioners placed in waiting list of the selections of the year 1999, to the appointments made by Hon'ble Chief Justice on the post of RGC in exercise of his powers under Rule 45 of the Rules of the Court. Learned Single Judge held that Rules 41 and 45 of the Rules of 1976 were not challenged. The appointments made in exercise of such powers cannot be said to be arbitrary or in violation of act and rules. The judgment was taken in appeal and that in Shravan Kumar Shukla and others vs. High Court of Judicature at Allahabad 2007 1 UPLBEC 652 a Division Bench of this Court prima facie found that a writ petition for quo warranto and can be maintained by a person, who may not be aggrieved by the appointments at all, when the appointments have been made contrary to the statutory rules or the scheme of the Constitution. With regard to other legal issues the Court adjourned the matter and directed the Special Appeal to be listed on 13.2.2007. The Special Appeal is still pending.
9. The issue involved in the case of Ashwani Khare and Shravan Kumar Shukla was the appointment made by Hon'ble Chief Justice under Rule 45 of the Rules of 1976, when the petitioners placed in the waiting list of the examination for RGC of 135 posts in the establishment of the High Court in the year 1999, were still awaiting appointments. In that case the waiting list stood exhausted and in any case it was confined to vacancies of the selections held in 1999. A waiting list cannot be a perennial source of recruitment to any establishment.
10. It is submitted by Shri Arvind Tripathi that the subject appointments were made during the pendency of the selection in which the petitioner was applicant. The nomenclature of RGC was changed to 'Assistant Review Officer' and that the qualifications were also changed depriving him a chance for selections. He is however still aggrieved by the orders of Hon'ble Chief Justice in making appointments of the kith and kin of the staff of the Court, who were closed to him and to appease members of the office bearers of the employees association and bar association and thereafter cancelling the selection. He submits that the constitutional authorities are trustees of the powers vested in them. They cannot utilise the powers, as in the present case, to violate the rights of citizens, for purposes other than they are created. The petitioner was cheated by firstly advertising the post to which he was qualified and applied, in making appointment of favoured persons on same posts without following any procedure and for the purposes other than the purpose for which the Rules 41 and 45 of Rules of 1976 were made, and thereafter cancelling the examination and announcing fresh selections with amended qualifications. The petitioner as a citizen of India is discrimianted by the action of the Hon'ble Chief Justice. He claims that his rights under Articles 14 and 16 of the Constitution of India has been violated by the keeper and guardian of these rights.
11. In support of his submissions the cousnel for the petitioner has relied upon judgments in H.C. Puttaswami vs. Hon'ble Chief Justice of Karnataka High Court, 1991 Supp (2) SCC 421 paras 9, 10, 11; M. Gurumoorthy vs. A.G. Assam, AIR 1971 SC 1850 paras 3, 4, 6, 8; Mahesh Prasad vs. Hon'ble High Court AllahabadAIR 1971 All 205 para 12; V.K. Mahendra vs. Honb';e High Court Allahabad (1998) 1 UPLBEC 711 para 19; V.T. Khanzode vs. RBI (1982) 2 SCC 7 para 15; Mangal Sain vs. Hon'ble High Court 1987 Lab IC 330 para 12; Dronam Raju vs. N.T. Ramarao AIR 1988 AP 69 para 14; Tamil Nadu Covery etc. vs. Union of India (1990) 3 SCC 440 para 6; Paramatama Saran vs. V.N. Singh AIR 1964 Raj. 13 para 8, 9; Umesh Chyandra Sinha vs. V.N. Singh AIR 1968 Pat. 3 para 12; Sri Krishna vs. Gujrat University AIR 1962 Guj. 88 para 6; M/s Datta vs. State of West Bengal AIR 1982 Cal 225 para 13; Sumer Singh vs. S.T.A. Tribunal AIR 1976 Raj. 144 para 3 and A.K. Nair vs. Election Commissioner AIR 1972 Ker. 5 para 17.
12. In S.C. Puttaswami, the Supreme Court held that the independence of the High Court secured under Article 229 was with a purpose of protecting the institution. These powers, however, are not to be misused by usurping the powers for appointment to be made in accordance with the rules.
13. In M. Gurumoorthy the Hon'ble Supreme Court observed "the need hardly was that those who are expected to oversee the conduct of the others must necessarily maintain a higher standard of ethical and intellectual rectitude. In Mahesh Prasad this Court held that orders passed by Hon'ble Chief Justice on administrative side can be challenged under Article 226 of the Constitution of India.
14. Shri Amit Sthelkar appearing for the High Court has filed counter affidavit of Shri Promod Kumar Goel, Joint Registrar (Inspection) High Court of Judicature at Allahabad stating therein that Hon'ble Chief Justice in exercise of his powers under Rules 41 and 45 of the Rules of 1976 read with Article 229 appointed the respondents no. 5 to 11 on ad hoc basis subject to condition that they will appear in the Routine Grade Clerk's examination/test and their services shall be regularised when they will qualify the examination of RGC. Para5 of the counter affidavit relevant for the purpose of the case is quoted as below:-
"5. That the facts stated in para 4 of the writ petition are incorrect and are denied. It is submitted that the appointment of respondent no. 4 as Officiating Section Officer (Cash) High Court of Judicature at Allahabad has been made by the Hon'ble the Chief Justice in exercise of his power under Rule 41 and 45 of Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rule, 1976 read with Article 229 of the Constitution of India and the appointments of respondent Nos. 5 to 11 of the writ petition have been made on ad hoc basis by the Hon'ble the Chief Justice under Rule 45 of Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules 1976, subject to condition that they will appear in the Routine Grade Clerk's Examination/test and their services shall be regularized when they will qualify the examination of Routine Grade Clerk. The Hon'ble the Chief Justice had passed such kind of orders in the interest of Government work due to the fact that the regular recruitment process is likely to take more time for filling the vacant posts. It is stated that the respondent no. 4 has been appointed on officiating basis on account of temporary vacancy that arose due to disciplinary proceedings pending against Sri V.K. Gaur-the incumbent appointed on the post of Section Officer (Cash) who is under suspension. It is further stated that the appointment of respondent no. 4 as officiating Section officer (Cash) has been challenged in Writ Petition No. 5400 (S/S) of 2004- Mahesh Kumar Saxena Vs. Hon'ble High Court and others that is pending in the Lucknow Bench of this Hon'ble Court."
15. In the present case, the writ petition challenging the appointment pending selections is both in the nature of writ of certiorari and also in the nature of quo warranto in which the validity of these appointments and the right of private respondents to hold these posts is challenged, as it is found by the Division Bench in Shravan Kumar Shukla. The writ petition as such is maintainable, though the petitioner may not be entitled to individual relief.
16. Rule 41 and Rule 45 of the Rules of 1976 clothe Hon'ble Chief Justice with residuary and extraordinary powers in all the matters incidental and ancillary to the Rules or where such matters are not sufficiently provided. In all such cases Hon'ble Chief Justice may make such orders as he may consider fit in respect of recruitment, promotion, confirmation or any other matters. These powers vested in the Hon'ble Chief Justice with an exception of approval of Government when such order relate to salaries, allowances, leave and pension or the powers which are to be found under Article 229, are conferred upon him for smooth functioning and administration of justice maintaining independence of the High Court. These powers, however, are not unguided and unlimited, and have to be exercised keeping in view the Constitutional rights of the citizens and in inconsonance for the purposes for which the rules are made by him and all other rules in this behalf. Having framed the Rules for appointment Hon'ble Chief Justice may not violate them for the purposes other than the exigency of service which may vary from time to time. It will not be prudent for the Court under Article 226 to define such exigencies. It is sufficient to observe that such powers are conferred with great trust and confidence. It is difficult to conceive that a high constitutional functionary vested with the powers to protect the right of the citizen of the State would violate these rights in exercise of his extraordinary powers. All such powers are conferred to carry out the purposes of the rules and must be used only for that purpose.
17. In the present case the counsel for the High Court is not in a position to explain as to why the selections have been delayed for such a long period of time. The last selection of Class III posts of the direct recruitment in the establishment of the High Court was held in 1999. Thereafter the sanction of fresh posts in pursuance of directions issued by this Court and Hon'ble Supreme Court and the vacancy has created alarming shortage of staff. The High Court however has not been able to fill up these posts. The advertisement issued in 2004 was cancelled and fresh advertisement was issued for filling up 150 posts on 31.7.2006. The selections are still pending. If it is really so difficult to select the clerical staff by holding examination, the High Court could have considered to hand over this task to a specialised agency keeping the supervision to itself or to appoint a special cell to complete the process of selection.
18. The fact remains that for last eight years the Registry of the High Court has not been able to fill up the the vacancies in Class III posts by direct recruitment and in the meantime large number of appointments have been made by Hon'ble Chief Justice. These appointments made under Rules 41, 45 of the Rules of 1976 in such unexplained exigencies are likely to raise apprehensions in the minds of the aspirants to these posts and to believe that the only method of appointments in the High Court is to gain proximity to Hon'ble Chief Justice. In the present case the petitioner has succeeded in bringing on record that the beneficiaries of the ad hoc appointments are only the kith and kin of the staff of the Court, office bearers of the employees unions and office bearers of the Bar Association. The petitioner has proved on record that these ad hoc appointments were not made by following any process of selection and were secured only by pleasing the then Hon'ble Chief Justices. There was no other criteria nor any such criteria has been placed on the record to inspire confidence in the merit of these ad hoc appointments. Adhocism raises suspicion and adhocism laced with favouritism confirms arbitrariness.
19. With the amendment of the Rules and the change of qualifications the petitioner was rendered ineligible to apply for the post, re-advertised by the High Court on 31.7.2006. The petitioner has not cared to amend the writ petition by either challenging the amendment in the qualifications to the post of Assistant Review Officer or the fresh advertisement. The writ petitioner as such cannot be granted any relief in the writ petition.
20. The Court however will fail in its duty, if it does not observe that the public confidence in the administration of justice can be maintained by following the high traditions of judicial ethics, morality and strict observations to the rules. The law laid down by Constitution bench in Secretary, State of Karnataka and others vs. Uma Devi 2006 4 SCC 1, is to be followed by all authorities in India including Hon'ble the Chief Justice of the High Courts. The Supreme Court has held in para 47 and 48 as follows:
"47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a part with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled."
21. Following the observations of the Constitution Bench of the Apex Court, the Court expects that all appointments made by Hon'ble Chief Justice in exercise of his powers under Rule 41 and 45 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules 1976, will be subject to the regular selection by direct recruitment in accordance with the Rule 8 of these Rules and that these appointees will not be confirmed and regularized.
22. The writ petition is disposed of with these observations.
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