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SHARAD KUMAR SRIVASTAVA AND OTHERS versus HIGH COURT OF JUDICATURE AT ALLAHABAD AND ANOTHER

High Court of Judicature at Allahabad

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Sharad Kumar Srivastava And Others v. High Court Of Judicature At Allahabad And Another - WRIT - A No. 15829 of 2004 [2004] RD-AH 824 (17 September 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                            Judgment reserved on 20.8.2004

                                                            Judgment delivered on 17.9.2004

Civil Misc. Writ Petition  15829 of 2004.

Sarad Kumar Srivastava & others         ...   Petitioners

Versus

High Court of Judicature at

Allahabad and another                          ...    Respondents.

Connected with

Civil Misc. Writ Petition No. 13737 of 2004

Anand Kumar                                        ...     Petitioner

Versus

State of U.P. and others.                        ...     Respondents.

Connected with

Civil Misc. Writ Petition No. 5732  of 2004

Kaushlendra Kumar Singh                       ...     Petitioner

Versus

State of U.P. and others.                        ...     Respondents.

Connected with

Civil Misc. Writ Petition No. 25438 of 2004

Vijay Kumar Misra                               ...     Petitioner

Versus

High Court of Judicature at

Allahabad and another                           ...     Respondents.

Connected with

Civil Misc. Writ Petition No. 9493 of 2004

Nagendra Kumar Srivastava                     ...     Petitioner

Versus

District Judge, Chandauli and others.      ...     Respondents.

Hon. Sunil Ambwani, J.

Heard Sri Ravi Kant Senior counsel assisted by Manoj Kumar Pandey , Sri R.S. Misra, assisted by Sri Arun Kumar, Sri B.D. Madhyan, Senior Advocate, assisted by Sri Satish Madhyan, and Sri L.R. Khan  for petitioners and Sri K.R. Sirohi for respondents.

By these writ petitions, the petitioners, included in the select list dated 16.6.2003 for appointment as Class III employees and

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Stenographers in the Judgeship at Chandauli, have sought for quashing the fax message dated 20.1.2004 and the circular letter dated 22.1.2004 issued by the Registrar General of the High Court for freezing appointments and  circular letter dated 29.4.1999, in so far as it limits the life of the select list to one year, and  have prayed for a direction to District Judge Chandauli to appoint the petitioners in the existing vacancies in class III cadre and the consequential benefits.  They have also prayed for a direction to the respondents to treat the select list dated 19.7.2003 as subsisting till the next selection takes place, and to make appointments there from till the existing vacancies are filled.

District Chandauli was carved out as a new Revenue District from the existing District Varanasi by notification dated 25.5.1997 issued by the State Government under section 11 of the U.P. Land Revenue Act, 1901.   The notification under the provisions of Bengal, Assam and Agra Civil Courts Act and Code of Criminal Proceedings, 1973 were issued on 19.12.1997 to sanction Sessions Division, Civil Court, J.S.C. Court, Insolvency Court,  and  various posts in the District Courts.  The State Government created 52 class III posts, for five fresh Courts, and  by the notification dated 16.6.1999, the District & Sessions Judge Chandauli was appointed.

The notification dated 16.6.1999 issued by the Registrar General of this Court authorized the District Judge, Chandauli to absorb the employees of parent Court at  Varanasi  and to appoint ad hoc personnel so as to make the functioning of the Court effective.  The appointments were, however, directed to last only for three months, to be followed by regular selections.  The District Judge, Chandauli invited applications for the 20 posts of clerks and 8 posts of Stenographers, vide  publication dated 10.10.2001 in  newspapers including 'Daink Jagran'.  The advertisement provided that the posts can be reduced or increased according to requirement.  All the petitioners applied for the posts of clerks.  After a  written examinations and interview, a select list was declared and published on 16.9.2003, enlisting 44 persons for the post of Clerks, and 11 for the post of Stenographers.   Out of this list, 19 persons, in accordance with the roster, applying the rules  of reservation, were offered appointments.   One of the posts of clerk grade belonging to  Other

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Backward Class was  reserved for Mohd Rauf, working as ad hoc employee  in clerical grade. He  had filed writ petition No. 49137 of 2002 for regularisation in which the High Court had passed interim orders dated 19.11.2002 directing that his service shall not be disturbed.  Two out of these 19 candidates did not join and thus only 17 persons out of this list have been appointed and are working in clerical grade.

In this writ petition we are not concerned with the selections and appointments of the Stenographers. The Registrar General  High Court at Allahabad, issued a notification dated 24.4.1999, in supercession of the notification dated 24.4.1996 directing  that all the appointment on class III posts in the subordinate courts is shall made as per provisions made under U.P. Subordinate Civil Court Ministerial Establishment Rules, 1997 ( In short the Rules 1947) and   U.P. Recruitment of Ministerial Staff of Subordinate Office in Uttar Pradesh Rules, 1950 ( in short the Rules 1950), and that the life of the select list shall be of one year.  The four directions  in the Circular letter are quoted as below:

"1. The life of the select list shall be for one year from the date of its publication.

2. The select list shall not be prepared by the District Judges for more than the double of the vacancies, advertised.

3. In counting the vacancies the District Judge shall take into account the existing vacancies and the vacancies which may likely to occur within a year due to the retirement of the officials.

4. No ad hoc appointments under Rule 269, General Rule (Civil) or otherwise shall be made without the prior permission of Hon'ble the Chief Justice."

The State Government by a notification issued in December, 2003 abolished the  nine new District including District Chandauli .  A Division Bench of this Court hearing a writ petition challenging the notification, passed and interim order in January, 2004 directing that no further action be taken in pursuance of the notification.  A circular letter dated 20.1.2004 was issued by the Registrar General of this Court conveying the directions of the Hon'ble the Chief Justice, for freezing employment in these nine Districts.  These directions were issued not to make any appointment in

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Class III and class IV cadres.  By circular letter dated 22.1.2004 a direction was issued by Registrar General to all the District Judge Subordinate to High Court, Allahabad directing that no further employment by way of recruitment, promotion or confirmation be given on account of the abolition of the nine Judgeships on the ground that  the staff of these Judgeships, may be required to be absorbed  in  the remaining judgeships.

It is on these facts that these writ petitions were filed claiming appointments from  the select list.

During the pendency of the writ petition, a Division Bench of this  Court set aside the notification abolishing the Nine Districts and consequently a circular letter was issued by the Registrar General on 29.5.2004 lifting the restrictions placed by  circular letter dated 20.1.2004, and 22.1.2004,  on the recruitment, promotion and confirmation etc. for class III and class IV cadres.

Sri Ravi Kant, Senior Counsel, submits that under the scheme of Rules of 1947 and Rules of 1950, the select list is to  continue, until it is exhausted.  He submits that all the vacancies caused due to promotion are also required to be filled up from the same select list, and that the notification freezing appointments from the select list and the notification limiting the life of select list is illegal and violative of the Rules of 1947 and the Rules of 1950 as well as Article 14 and 16 of the Constitution of India, as it virtually amounts to cancellation of the statutory select list.  Sri Ravi Kant states that Note 2 to the  Rule 3 of Rules of 1947 provides that the posts cannot be kept in abeyance or left unfilled until the concurrence of the High Court or the State Government is obtained.  Relying upon the judgment in Om Prakash Shukla Vs. Akhilesh Shukla, AIR 1986 SC 1043, Sri Ravi Kant submits that the Rules of 1947, apply except in the area, which is covered by the Rules of 1950, and that  under Rule 5 of the Rules of  1950, the examinations may not be held annually and thus the life of select list must continue up to the next selections.  He submits that the District Judge is not obliged to hold examinations  every year, and thus the  validity of the list cannot be restricted only to one year.  In the judgment reversed by the Supreme Court in Om Prakash Shukla, the High Court had applied the principle of implied repealed of the Rules of 1947.  

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The Supreme Court did not agree and held that only Rule 9 to 12 of the Rules of  1947 stood superseded by the Rules of 1950.  He has relied upon Rafiquddin Vs. State of U.P., AIR 1988 SC 162 in which it was held that the select list cannot be treated to be a dead ball and will remain in force till the next recruitment.  Sri Ravi Kant has tried to distinguish the Full Bench Judgment of this Court in  Devendra Nath Srivastava Vs. State of U.P. and others (1996) 2 UPLBEC 1037, in which while interpreting Rule 14(3) of the Rules of 1947 it was held that the period of recruitment from the select list is only one year and that all the vacancies are to be filled from the list, within one year.

Sri Ravi Kant further submits that there were large number of vacancies in the  higher grades.  In the counter affidavit of Sri R.P. Gupta, Civil Judge (Senior Division) Chandauli, it is admitted that out of total 20 vacant posts, in higher grades 2 posts are lying vacant in the pay scale of Rs. 4500-7000 and 18 posts in the pay scale of Rs. 4000-6000.  According to Sri Ravi Kant these promotions, and the  resultant vacancies could not be held up, to deprive the appointment to the petitioners from the select list.   He has relied upon the judgment in Shankersan Das Vs. State of U.P., 1991 (3) SCC 47 and A.P. Agarwal Vs. State of

2000(1) SCC 600 in submitting that the District Judge does not have a discretion to withhold promotions and resultant vacancies. It must be demonstrated that he has acted fairly, rationally and reasonably in leaving the vacancies in higher grade unfilled.  Elaborating the last argument it is submitted that the Registrar General while issuing circular letter dated 20.1.2004 and 22.1.2004 did not take into account the interim order of the High Court by which further actions in pursuance of the notification  abolishing the new districts was stayed.  Except for District Judge and Chief Judicial Magistrate all other courts were functioning.  The  promotions could be easily made and the resultant vacancies filled up from the petitioners in the select list.  He submits that the ban was lifted giving a short time during which the promotions were not made and now the petitioner have been deprived from appointment even though they are selected.  

Sri R.S. Misra and Sri B.D. Madhyan have adopted the arguments of Sri Ravi Kant.  Sri B.D. Madhyan has cited the judgment in M.C.

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Yadav (Dr) Vs. Director of Education 2001(2) UPLBEC 1435 and Excise Commissioner Vs. Sanjay Kumar Yadav, 2004(1) UPLBEC 1006 in submitting that  where the  vacancies are available the appointments must be given unless there is valid reason for keeping them vacant.

In the writ petition No. 9493 of 2004  filed by L.R. Khan the petitioners have challenged the selection on various grounds.  At the time of hearing Sri L.R. Khan submits that he  does not have any instruction from his client and did  not advance any argument.

Sri K.R. Sirohi appearing for the respondents submits that 19 persons were offered appointment out of the list of 44, for 20 vacancies.  One post was left vacant for Mohd. Rauf due to interim orders passed by this Court.  Two candidates did not join.  The appointments, however, could not be given as a ban was placed on 20.1.2004.  After the ban was lifted, three posts are lying vacant.  He submits that promotions were not be made as the notification dated 16.6.1999 issued by the High Court provided that so far as promotional posts are concerned, the District Judge will promote senior  officials on deputation from the judgeship from which the District was carved out.  Sri Sirohi has relied upon the judgment of Supreme Court in Ashok Kumar and others Vs. The Chairman Banking Service Recruitment Board and others, AIR 1996 SC 1145, in which it was held that the vacancies  arising  subsequently cannot be filled up without notification and if such vacancies are filled up from the persons in the select list or waiting which were not include in the selections, the rights of other persons waiting for recruitment shall be violated.  Where the statutory rules provide the validity of the select list to be  one year, its continuance beyond one year is illegal.  

The question raised in these writ petitions are  covered by Full Bench Judgment of this Court in Devendra Nath Srivastava Vs. State of U.P. and others, 1996(2) UPLBEC 1037.  The relevant paragraphs of the judgment are quoted as below:

" 13. The period of recruitment from such list is one year under sub Rule (3) of Rule 14.  All the vacancies had to be filled up within one year from the first list i.e. within 29th June, 1982.  It is

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contended that the view taken by the District Judge by his order dated 1.12.1982 that the period of one year shall be taken from the first list which was prepared on 29th June, 1981 and not from the dated 30.6.1982, is erroneous.

14. It is necessary to examine the scheme of the Rules.  Rule 5 provides for academic qualification.  Rule 6 is regarding age,  Rule 7 for character and Rule 8 for physical fitness.  Rule 9 provides for method of recruitment.  It provides that early in each year or as the circumstances may require each District Judge shall recruit as many candidates for his Judgeship as are required for the vacancies likely to occur in the course of the year.  Rule 10 provide for invitation of applications for recruitment. Rule 11 provided that the recruitment shall be based on the results of the competitive examination and an interview by the District Judge at the Headquarters of the Judgeship.  The examination and interview shall be held in the manner laid down in Appendix II. Rule 14(1) which provides that the name of candidates recruited in accordance with Rule 12 shall be entered in order of merit in a bound register in form (B) prescribed in Appendix-I.  Sub Rule (2) provides that the name of any candidate entered under sub rule (1) may be removed for inefficiency or misconduct offered in strict order of seniority according to list in the bound register prescribed under Sub rule (1) within one year from the date of his recruitment, his name shall be automatically removed from the register of recruited candidates and he must take his chance with other for recruitment again in a subsequent year.

15. Rule 9,10,11,12 and 13 have been superseded by a letter issued by the High Court on the administrative side by a circular letter dated January 2, 1987 and it was clarified that the rules for the recruitment of ministerial staff to the Subordinate Offices 1950 as amended from time to time should be followed taking in view the decision of the Supreme Court in the Om Prakash Shukla Vs. Akhilesh Kumar Shukla and others, AIR 1988 SC 1043.

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16. Rule 14(1) contemplates only one list.  Rule 11 provided that the recruitment shall be based on the result of the competitive examination and interview by the District Judge at the Headquarters of the Judgeship and the examination and the interview shall be held in the manner laid down in Appendix-II. After such list is prepared the District Judge was not required to prepare a second list for the purpose of recruitment after taking departmental examination of the candidates on the basis of the first list.  The appointment was to be made strictly in order of seniority according to the list prepared on the interview and the written test.  The District Judge could have removed the name of any candidate for inefficiency or misconduct under sub rule (2) of Rule 14.  He could not, after preparing the first list on the basis of the written test and interview, prepare the second list after the departmental examination for the purpose of offering appointment under sub Rule (3) of Rule 14,  Supreme Court in Om Prakash Shukla's case (supra) held that examination was to be conducted in accordance with the syllabus as prescribed by the Rules known as 'Rules for the Recruitment of Ministerial Staff to the Subordinate Offices ( in short the 1950 Rules).  The 1950 Rules also did not contemplate any procedure for holding any other test after the selection has taken place on the basis of written test and interview.

17. The view taken by the District Judge in his order dated 1st December, 1992 that for the purpose of recruitment the list dated 29th June, 1981 shall be taken into account does not suffer from any illegality.  The period of such list expired after one year as provided under Sub-Rule (3) of Rule 14 on 28th June, 1982."

In Prem Singh and others Vs. Haryana State Electricity Board and others,(1996) 4 SCC 319, the Supreme Court considered the question whether the waiting list can be utilized for filling up future vacancies.  Following the judgment in para 20 to 25 of the judgment, holding that such a course of action can be taken only in exceptional circumstances or in emergent situation and that too by taking a policy decision in that behalf are quoted below:

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" 20. In the case of Gujrat State Dy. Executive Engineers' Association Vs. State of Gujrat, the following question arose for consideration :  :What is a waiting list?;  can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?'; and lastly how long can it operate?" Though this question was examined in the context of Executive Engineers (Civil) Gujrat Service of Engineers Class I Recruitment Rules, 1979 the following observations made by this Court are of general application.  Therein this Court has observed: ( SCC Head note PP. 592-93).

" How a waiting list should operate and what is its nature may be governed by the Rules.  Usually it is linked with the selection or examination for which it is prepared.  For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held.  Such list are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon.  Therefore, once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it."

21. The following observations made therein are also relevant : (SCC PP. 599-601, para 10).

"Appointment in future vacancies from waiting list prepared by Commission should be exception rather than the rule.  It has many ramifications. .......... There was no contingency nor the State Government had taken any decision to fill the vacancies from the waiting list as it was

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not possible for it to hold the examination nor any emergent situation had arisen except the claim of some of the candidates from the waiting list that they should  be given appointment for vacancies which arose between 1980 and 1983 and between 1983 and 1993......The direction of the High Court, therefore, to appoint the candidates from the waiting list in the vacancies which, according to its calculation, arose between the years 19809 to 1983 and between 1983 to 1993 cannot be upheld."

However, on equitable considerations this Court did not set aside appointments of those candidates who were appointed in pursuance of the decision of the High Court but gave appropriate directions for securing the ends of justice.

22.   In State of Bihar Vs. Madan Mohan Singh this Court held that the advertisement and the whole selection process were meant only for 32 vacancies.  The process came to an end as soon as these vacancies were filled up.  If the same list has to be kept alive for the purpose of filling up of other vacancies, it would amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and the selection process.

23.   In State of Bihar Vs. Madan Mohan Singh this Court has in terms  held that if the advertisement and the consequent selection process were meant only to fill up a certain number of vacancies then the merit list will hold good for the purpose of filling up those notified vacancies and no further.  In that case 32 vacancies were advertised but a select list of 129 candidates was prepared.  A question arose whether more candidates could be appointed on the basis of the said select list.  This Court held that once the 32 vacancies were filled up the process of selection for those 32 vacancies got exhausted and came to an end.  It was further held that if the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates

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who would have become eligible subsequent to the said advertisement and selection process.

24.  One of the questions which fell for consideration in Madan Lal Vs. State of J & K was whether preparation of merit list of 20 candidates was bad as the vacancies for which the advertisement was issued by the Commission were only 11 and the requisition that was sent by the Government for selection was also for those 11 vacancies.  This Court held that the said action of the Commission by itself was not bad but at the time of giving actual appointments the merit list had to be so operated that only 11 vacancies were filled up.  The reason given by this Court was that as the requisition was for 11 vacancies the consequent advertisement and requirement could also be for 11 vacancies and no more.  This Court further observed : (SCC PP 502-03, para 23)

" It is easy to visualize that if requisition is for 11 vacancies and that results in the initiation of recruitment process by way of advertisement, whether the advertisement mentions filling up of 11 vacancies or not, the prospective candidates can easily find out from the office of the Commission that the requisition for the proposed recruitment is for filling up 11 vacancies.  In such a case a given candidate may not like to compete for diverse reasons but if requisition is for larger number of vacancies for which recruitment is initiated, he may like to compete.  Consequently the actual appointments to the posts have to be confined to the post for recruitment to which requisition is sent by the Government.  In such eventuality, candidates in excess of 11 who are lower in the merit list of candidates can only be treated a wait-listed candidates in order of merit to fill only the 11 vacancies for which recruitment has been made, in the event of any higher candidate not being available to fill the 11 vacancies, for any reason.  Once the 11 vacancies are filled by candidates taken in order of merit from the select list that list will get exhausted, having served its purpose."

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It may also be stated that while making the aforesaid observations this Court agreed with the contention that while sending a requisition for recruitment to posts the Government can keep in view not only actual vacancies then existing but also anticipated vacancies.

25.   From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies.  If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates.  The State can deviate from  the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf.  Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould  the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment.  What relief should be granted in such cases would depend upon the facts and circumstances of each case."

In Sanjoy Bhattacharjee Vs. Union of India and others, (1997) 4 SCC 283, the Apex Court held that a person does not get any vested  right to appointment, because he has been placed in the wait list. Unless it is shown that any one below his rank has been appointed, he cannot have a cause for grievance and cannot seek direction for his appointment.

I am unable to agree with the submission of Sri Ravi Kant that the select list is to continue till it is exhausted.  In Om Prakash Shukla (supra) the Supreme Court held that Rule 9 to 12 of Rule 1947 shall stand

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superseded.  Rule 5 provides that the recruitment has to be held once in a year.  It may not be mandatory to hold recruitment every year but that will not give the persons on the select list to claim appointment beyond one year as the vacancies are to be calculated with reference to the vacancies which are likely to be caused within a year.  The persons placed in the waiting list are not entitled to claim any  vacancy which were likely to be  caused due to  promotion as these vacancies were not advertised, and included in the selections.  Rule 14(3) specifically provides that the period of recruitment from such list is one year.  Once the list prepared after selections is utilised to fill the advertised vacancies, and all the persons join the list stands exhausted.  Thereafter, no one can claim appointment from the said list.  

In the present case the respondents did not acted unfairly or arbitrarily in keeping the vacancies unfilled. The District was carved out of District Varanasi. There were number of persons waiting for promotion in the Judgeship at Varanasi and that the High Court rightly directed that the promotional post shall be  filled up from the persons who have put in qualifying service for such promotion from Varanasi.  Such eligible  persons were not available in Chandauli as the recruitment concluded only in the middle of the year 2003.  

The submission that the Registrar General did not take into account the interim orders of the High Court with regard to abolition of the Districts, and that the circular letters dated 20.1.2004 and 22.1.2004 virtually cancelled the lists, does not take into account the period of uncertainty which was caused due to the Notification abolishing the nine Districts.   The High Court had only stayed  further action in persuance of the notification.  In such a situation of flux, it was not possible to fill up the vacancies  or to proceed to make promotions.  The High Court, therefore, rightly took the decision to freeze of the appointments or promotions until the matter was finally heard and decided.  The lists were not cancelled.   In the present case the list revived on 28.5.2004 in the District of Chandauli, and was  operative from 28.5.2004 to 16.7.2004.

For the aforesaid reasons I do not find any substance in the claim of the petitioners except for two candidates in the select list who should have been appointed out of the select list on account of the fact that two

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persons from the list, who were offered appointments did not join during the period of validity of the select list.  The District Judge, Chandauli was required and shall offer appointment to two persons out of the select list, according to roster, and that the right of third and last person in the select list shall also depend upon the decision of writ petition filed by Mohd Rauf.

All the writ petitions are consequently dismissed subject to the observations made with regard to three candidates out of the select list.  No order as to costs.

Dt. 17.9.2004.

BM/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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