Patna High Court
Raj Ranjan And Ors vs The State Of Bihar And Ors on 18 July, 2019
Bench: Chief Justice, Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5129 of 2009
======================================================
SANJAY KUMAR , son of Sri Kameshwar Pathak, Resident of Village-
Pansuhi, P.O.- Sihi, Police Station- Dulhin Bazar, District- Patna
... ... Petitioner/s
Versus
1. THE STATE OF BIHAR through Chief Secretary, Bihar, Patna
2. The Secretary, Personnel and Administrative Reforms Department, Bihar,
Patna
3. The Principal Secretary, Human Resources Development Department,
Govt. of Bihar, Patna
4. The Secretary, Department of Higher Education, Bihar, Patna
5. The Secretary, Department of Secondary Education, Bihar, Patna
6. The Director, Department of Higher Education, Bihar, Patna
7. The Director, Department of Secondary Education, Bihar, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 16183 of 2012
======================================================
1. Raj Ranjan, Son of Late Krishnadeo Prasad Resident Of Village-
Sikandarpur, Police Station - Sangrampur, District - East Champaran
Motihari, At Present Posted And Working As An Assistant Teacher In Govt.
Upgraded Middle School Gaira, Anchal Kotawa, District East Champaran
Motihari.
2. Upendra Kumar Singh Son Of Late Hari Bansh Singh Resident Of Village
and P.O. Jasauli Patti, Police Station - Kotawa, District - East Champaran
Motihari, At Present posted and working as an Assisant Teacher in Govgt.
Middle Schook Jasauli Patti Anchal Kotawa, District - East Champaran
Mothari.
3. Munna Kumar Son Of Shri Gopal Baitha Resident Of Village Bangara, P.O.
Jasauli Jamuniya, Police Station - Kotawa, Anchal Kotawa, District - East
Patna High Court CWJC No.5129 of 2009 dt.18-07-2019
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Champaran, At Present Posted And Working As An Assistant Teacher In
Govt. Upgraded Middle School Bishunpur, Anchal Kotawa, District - East
Champaran Motihari.
4. Bablu Kumar Son Of Late Raghunath Prasad Resident Of Village -
Kauwaha, P.O. Manguraha, Police Station - Govindganj, District - East
Champaran, At Present Posted And Working As An Assistant Teacher In
Govt. Middle School Gayghat, Anchal Harsidhi, District - East
ChamparanMotihari.
5. Ashok Kumar Hazra Son Of Late Yugeshwar Hazra Resident Of Village -
Machhargawan, P.O. Machhargawan, Police Station - Kotwa, District - East
Champaran, At Present Posted And Working As An Assistant Teacher In
Govt. Upgraded Middle School Balgana, Anchal Turkaulia, District - East
Champaran Motihari.
6. Dhirendra Kumar Giri Son Of Gauri Shankar Giri Resident Of Village -
Senrha Mathia, P.O. Bhatwalia, Police Station - Sangrampur, District - East
Champaran, At Present Posted And Working As An Assistant Teacher In
Govt. Middle School Bariarpur Boys, Anchal Keshariya, District - East
Champaran Motihari.
7. Prashant Kumar Deepak 'Son Of Durga Baitha Resident Of Village -
Semarahiya, Police Station - Chhauradano, District - East Champaran, At
Present Posted And Working As An Assistant Teacher in Govt. Middle
School Lakhaura, Anchal Motihari Rural, District - East Champaran
Motihari.
8. Arbind Kumar Dubey Son Of Late Dwarika Nath Dubey Resident Of
Village and P.O. Nawada, Police Station - Govindganj, District - East
Champaran, At Present Posted And Working As An Assistant Teacher In
Govt. Middle School Areraj Boys, Anchal Areraj, District - East Champaran
Motihari.
9. Arun Kumar Singh Son Of Ram Dular Singh Resident Of Village Sareya
Baduraha, P.O. Rampur Khajuria, and Police Station Dumaria Ghat, District-
East Champaran, At Present Posted And Working As An Assistant Teacher In
Govt. Middle School Rampur Khajuria, Anchal Keshariya, District - East
Champaran Motihari.
10. Sahdeo Ram Son Of Late Ram Bilas Ram Resident Of Village P.O. and
Police Station - Chiraiya Gokhula, District East Champaran, At Present
Patna High Court CWJC No.5129 of 2009 dt.18-07-2019
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Posted And Working As An Assistant Teacher In Govt. Middle School
Tikuliya, Anchal Chhauradano, District - East Champaran Motihari.
11. Ramesh Kumar Singh Son Of Late Hira Mohan Singh Resident Of Village
P.O. and Police Station - Kotwa, District - East Champaran, At Present
Posted And Owrking As An Assistant Teacher In Govt. Primary School
Fulwaria, Anchal Chakiya, District- East Champaran Motihari.
12. Radha Krishna Nath Tiwari Son Of Madhav Nath Tiwari Resident Of
Village - Balhan, P.O. Mangurahan, Police Station - Govindganj, District -
East Champaran, At Present Posted And Working As An Assistant Teacher In
Govt. Middle School Radhiya, Anchal Areraj, District - East Champaran
Motihari.
13. Ganpat Ram Son Of Late Kishun Ram Resident Of Village - Jitwarpur, P.O.
Pipara, Police Station - Govindganj, District - East Champaran, At Present
Posted And Working As An Assistant Teacher In Govt. Middle School
Raitola Radhiya, Anchal Areraj, District - East Champaran Motihari.
14. Bharat Ram Son Of Late Yojan Ram Resident Of Village - Matiyaria, P.O.
Makhuwa, Police Station - Harisidhi, District - East Champaran, At Present
Posted And Working As An Assistant Teacher In Govt. Primary School
Mikaulia, Anchal Areraj, District - East Champaran Motihari.
15. Anupam Kumar Son Of Shri Mahesh Ram Resident Of Village and P.O.
Karariya, Via Dariyapur, Police Station and Anchal Kotwa, District - East
Champaran, At Present Posted And Working As An Assistant Teacher In
Govt. Primary School Ahiraulia Girls, Anchal Kotwa, District - East
Champaran Motihari.
16. Ramjee Prasad Son Of Hiralal Sah Resident Of Village and P.O. Nawada,
Police Station - Govindganj, District - East Champaran, At Present Posted
And Working As An Assistant Teacher In Govt. Primary School Areraj
Bazar, Anchal Areraj, District - East Champaran Motihari.
17. Mahesh Kumar Son Of Satyadeo Mahto Resident Of Village andP.O. Areraj,
Police Station - Govindganj, District - East Champaran, At Present Posted
And Working As An Assistant Teacher In Govt. Primary School Barai Tola
West, Anchal Areraj, District - East Champaran Motihari.
18. Manoj Kumar Son Of Sri Chandrika Prasad Resident Of Village and P.O.
Gamharia Kala, Via Adapur, Police Station - Adapur, District -East
Champaran, At Present Posted And Working As An Assistant Teacher In
Patna High Court CWJC No.5129 of 2009 dt.18-07-2019
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Govt. Upgraded Middle School Balganda, Anchal Turkaulia, District - East
Champaran Motihari.
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Principal Secretary, Education Department, Government Of Bihar,
Patna.
3. The Director, Primary Education, Bihar, Patna.
4. The District Magistrate East Champaran At Motihari.
5. The Deputy Development Commissioner-Cum-Chairman, District Education
Establishment Committee, East Champaran at Motihari
6. The District Education Officer, East Champaran At Motihari.
7. The District Programme Officer Establishment, East Champaran At
Motihari.
8. The Block Education Officer, Harsidhi, District - East Champaran.
9. The Block Education Officer, Kotawa, District - East Champaran.
10. The Block Education Officer, Turkaulia, District - East Champaran.
11. The Block Education Officer, Motihari Rural, Disltrict - East Champaran.
12. The Block Education Officer, Areraj, District - East Champaran.
13. The Block Education Officer, Keshariya, District - East Champaran.
14. The Block Education Officer, Chakiya, District - East Chmparan.
... ... Respondent/s
======================================================
with
Letters Patent Appeal No. 894 of 2016
In
Civil Writ Jurisdiction Case No.7164 of 2014
======================================================
Ashutosh Jha Son of Lae Mahanand Jha, Resident of Village and P.O. -
Garhpura, Police Station - Garhpura, District - Begusari, at Present posted and
working as an assistant teacher Incharge In Govt. Primary School Badiya,
Anchal - Garhpura, District - Begusarai.
... ... Appellant/s
Patna High Court CWJC No.5129 of 2009 dt.18-07-2019
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Versus
1. The State Of Bihar
2. The Principal Secretary, Education Department, Government of Bihar,
Patna.
3. The Joint Secretary, Education Department, Govt. of Bihar Patna.
4. The Director, Primary Education, Bihar, Patna.
5. The District Magistrate, Begusarai.
6. The Additional Collector Establishment cum Member, Teachers Promotion
Committee, Begusarai.
7. The Deputy Development Commissioner - cum - Chairman, District
Education Establishment Committee, Begusarai
8. The Regional Deputy Director of Education, Munger Division, Munger.
9. The District Education Officer, Begusarai.
10. The District Programme Officer Establishment, Begusarai.
11. The Block Education Officer, Garhpura, District Begusarai.
12. The Head Master - cum - Drawing and Disbursing Officer, Govt. Primary
Girls School, Korai, Anchal - Garhpura, District- Begusarai
... ... Respondent/s
======================================================
with
Letters Patent Appeal No. 307 of 2016
In
Civil Writ Jurisdiction Case No.18736 of 2014
======================================================
1. The State of Bihar
2. The Principal Secretary, Human Resources Development Department,
Government of Bihar, Patna.
3. The Director, Secondary Education, Government of Bihar, Patna.
4. The Deputy Director, Secondary Education, Government of Bihar, Patna.
... ... Appellant/s
Versus
1. Vidya Shankar Mishra Son of Late Maheshwar Mishra Resident of Village
P.O. - Belsar, P.S. - Mehandia, District - Arwal.
2. Madhvi Kumari Mishra Wife of Manoj Kumar Pathak Resident of Mohalla -
Patna High Court CWJC No.5129 of 2009 dt.18-07-2019
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Keshri Nagar, P.S. - Shastri Nagar, District - Patna.
3. Mritunjay Kumar Son of Birendra Kumar Resident of Village - Manjhar,
P.O. - Kormathu, P.S. - Belaganj, District - Gaya.
... ... Respondent/s
======================================================
with
Letters Patent Appeal No. 1210 of 2010
======================================================
1. THE STATE OF BIHAR through the Principal Secretary, Human Resources
Development Department, Government of Bihar, Patna
2. The Director, Madhyamik Shiksha Government of Bihar, Patna
3. The Principal Secretary, Personnel And Administrative Reforms Department
Government Of Bihar, Patna
4. The District Education Officer Katihar
... ... Appellant/s
Versus
1. MD.NISAR ALAM S/O Md. Sajjad Alam R/O Vill Uchala, P.S.Barari,
Distt-Katihar
2. The Zila Parishad , Katihar Through Its Executive Officer
3. The Executive Officer, Zila Parishad Katihar
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 18039 of 2008
======================================================
AZAD KUMAR SINGH , son of Arun Deo Prasad Singh, resident of Village-
Kohwara P.S. Falka District- Katihar
... ... Petitioner/s
Versus
1. THE STATE OF BIHAR through the Chief Secretary, Govt. of Bihar, Patna
2. The Secretary Human Resources Development Department, Bihar, Patna.
Patna High Court CWJC No.5129 of 2009 dt.18-07-2019
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3. The Secretary Personnal and Administrative Reforms Department, Govt. of
Bihar, Patna
4. The Director Madhyamik Siksha, Govt. of Bihar, Patna
5. Deputy Director, Madhyamik Siksha, Govt. of bihar, Patna
6. District Education Officer, Katihar
7. District Education Officer, Purnia
8. District Education Officer, Aurangabad
9. District Education Officer, Kishanganj
10. District Education Officer, Bhagalpur
11. District Education Officer, Banka
12. District Education Officer, Darbhanga
13. District Education Officer, Araria
14. District Education Officer, Gaya
15. District Education Officer, Saharsa
16. District Education Officer, Madhepura.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 5129 of 2009)
For the Petitioner/s : Mr.Bindhyachal Singh, Advocate
Mr. Satya Prakash, Advocate
Mr. Vipin Kumar Singh, Advocate
For the Intervenor : Mr. Alok Ranjan, Advocate
For the State : Mr. Lalit Kishore, Advocate General
Mr. Prabhu Narayan Sharma, A.C. to A.G.
Mr. Manish Dhari Singh, A.C. to A.G.
(In Civil Writ Jurisdiction Case No. 16183 of 2012)
For the Petitioner/s : Mr.Umesh Kumar Mishra, Advocate
For the State : Mr. G.A. 7
(In Letters Patent Appeal No. 894 of 2016)
For the Appellant/s : Mr.Umesh Kumar Mishra, Advocate
For the Respondent/s :
(In Letters Patent Appeal No. 307 of 2016)
Patna High Court CWJC No.5129 of 2009 dt.18-07-2019
8/33
For the Appellant/s : Mr.Awadhesh Kumar, Advocate
For the Respondent/s :
(In Letters Patent Appeal No. 1210 of 2010)
For the Appellant/s : Mr. Lalit Kishore, Advocate General
Mr. Prabhu Narayan Sharma, A.C. to A.G.
For the Respondent/s : Mr. Alok Ranjan, Advocate
Mr. Ashok Kumar Yadav, Advocate
For the Intervenor : Mr. Vikas Mohan, Advocate
(In Civil Writ Jurisdiction Case No. 18039 of 2008)
For the Petitioner/s : Mr.Ebrahim Kabir, Advocate
Ms. Shruti Sinha, Advocate
For the Respondent/s : Mr. Lalit Kishore, Advocate General
Mr. Kumar Manish, S.C. 5
Mr. Kumar Pankaj, A.C. to S.C. 5
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 18-07-2019
C.W.J.C. No. 5129 of 2009 and the connected
writ petition C.W.J.C. No. 18039 of 2008 raise the same issue
simultaneously in view of the order of remand by the Apex
Court dated 6th January, 2016 in Civil Appeal No. 4273 of 2014
and Civil Appeal No. 4274 of 2014. The other connected
matters being linked with the same legal issue have also been
tagged along with these two writ petitions and have been heard
simultaneously. We have heard the learned counsel for the
petitioners and the appellants in the respective cases for the
Patna High Court CWJC No.5129 of 2009 dt.18-07-2019
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private individuals contesting their claims and the learned
Advocate General for the State of Bihar on behalf of the
respondents in the two writ petitions and on behalf of the
appellant in L.P.A. No. 307 of 2016 and L.P.A. No. 1210 of
2010.
2. A dispute arose with regard to the equivalence
of Graduate qualification which was claimed to be possessed by
the two sets of writ-petitioners in the above noted writ petitions
contending that they possess the degree of Sahityalankar from
the Hindi Vidya Peeth, Deoghar which is equivalent to a
Graduate degree and, therefore, they were entitled for the
employment being claimed by them. In both the cases the
selection and appointment is for the post of Librarian in an
Institution governed by the provisions of the Bihar Zila Parishad
Madhyamik Evam Uchchtar Madhyamik Shikshak Niyojan
Evam Seva Sharten Niyamavali, 2006.
3. These two writ petitions were allowed by a
Division Bench of this Court in the decision reported in 2009
(4) PLJR 1038 [Sanjay Kumar Vs. State of Bihar]. The
direction issued by the High Court was to re-do the selection
process and consider the candidature of the petitioners
preferably within a period of three months.
Patna High Court CWJC No.5129 of 2009 dt.18-07-2019
10/33
4. Questioning the correctness of the said
judgment, two Civil Appeals were preferred by the State of
Bihar before the Apex Court being Civil Appeal Nos. 4273 of
2014 and 4274 of 2014 that were ultimately allowed and the
matter was remitted back to the High Court vide judgment dated
6th January, 2016. The judgment being short and brief is
extracted hereinunder:-
"These appeals have been filed
challenging the common impugned order dated
17.11.2009passed by the Patna High Court allowing the writ petitions in CWJC Nos.
5129/2009 and 18039/2009 filed by the respondents herein and directing the appellant- State of Bihar to redo the entire selection process for the post of Librarian considering the case of the respondents also and further restraining the State from issuing appointment letters to other selected candidates.
2. Brief facts giving rise to these appeals are as under:-
State of Bihar framed Bihar District Council, Secondary & Higher Secondary Teacher (Employment & Service Conditions) Manual 2006 under Article 243G and Section 73 read with Section 146 of Bihar State Panchayat Raj Act, 2006. Rule 4(k) (vii) (a) of the said Rules was amended in 2008. The said Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 11/33 amendment prescribes an essential qualification for appointments of teachers and librarians in the schools and also regulating appointments. As per amended Rule 4 for appointment as teachers/librarians, the candidates must possess the graduation degree from any recognized university with minimum 45% marks. An advertisement bearing No.11/employment1- 13/91(Part-II)-1337 dated 25.08.2008 was issued by Government of Bihar, Human Resources and Development Department for appointment to the post of Librarian and Teacher in different schools under Zila Parishad and Nagar Nikaya in the State of Bihar. The said advertisement specifically referred to Recruitment Rules 2006 although the qualification or eligibility criteria was not specifically mentioned.
3. Respondents herein applied for the posts of Librarian. After the advertisement was issued, the Department issued order No. 11/Ma.1-01/2008 on 27.08.2008 containing exhaustive list of twenty eight colleges/universities/degrees that were not then recognized by the Government of Bihar for the purpose of the Recruitment Rules 2006 and the advertisement dated 25.08.2008 and those degrees were not valid for employment of teachers. The Department issued another Order No.11/M-44/2008-1968 (Annexure P/5) on 25.11.2008 declaring that the degree of Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 12/33 Sahityaalankar awarded by Deoghar Vidyapeeth is not valid for employment. The State Government issued a letter dated 27.07.2007 clarifying the stand of the State regarding the degree of Sahityaalankar awarded by Vidyapeeth Deoghar is not equivalent to degree of graduation for the purpose of appointment under Bihar Education District Council, Secondary and Higher Secondary Teachers (Employment/ Services) Rules 2006. The letter dated 27.07.2007 was subject matter of challenge in Writ Petition No. 15237/07 titled Pramod Paswan vs. State of Bihar and in the said Writ Petition, the State was directed to take a fresh decision on the same. The State Government examined the matter and vide Memo No. 11/M- 44/2008-1968 dated 25.11.2008, it was declared that the degree of Sahityaalankar awarded by Deoghar Vidyapeeth is not valid for employment. On 13.12.2008, the Government of Bihar, Human Resources Development Department, issued letter No.11/Na.1-9/2008- 2053 wherein inter-alia it was specifically mentioned that the degree of Sahityaalankar awarded by Deoghar Vidyapeeth cannot be attached to merit list of candidates.
4. Pursuant to the said advertisement, respondents applied for the post of Librarian. The respondents possessed the degree of Sahityaalankar awarded by Deoghar Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 13/33 Vidyapeeth. Challenging the validity, legality and correctness of the amendment of Rule 4(k)
(vii) (a) of the Recruitment Rules 2006 as amended in 2008, respondents filed two writ petitions bearing Nos.5129/2009 and 18039/2009. The Patna High Court vide impugned order dated 17.11.2009 allowed the writ petitions filed by the respondents directing the State of Bihar to redo the entire selection process as above mentioned. Aggrieved by the same, State of Bihar has filed these appeals assailing the impugned order.
5. Mr. Gopal Singh, learned counsel for the appellants submitted that State of Bihar has issued order dated 27.08.2008 containing list of twenty eight institutions which were not recognized under the recruitment rules. It was submitted that the State has considered the matter at several occasions and has decided not to grant benefits to un-recognized degrees and accordingly the degree of Sahityaalankar awarded by Deoghar Vidyapeeth is not equivalent to graduation degree and the High Court has not considered the matter in the light of order dated 25.11.2008 (Annexure P/5).
6. Per contra, Mr. N. Rai and Mr. S.B. Sanyal, learned Senior Counsel for the respondents contended that the degree of Sahityaalankar makes the person eligible for appearing in the competitive examinations Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 14/33 conducted by the Bihar Public Service Commission and it would be arbitrary to say that degree of Sahityalankar does not make a person eligible as per Bihar District Council, Secondary & Higher Secondary Teacher (Employment & Service Conditions) Manual 2006 as amended in 2008 and the same is violative of Articles 14 and 16 of the Constitution of India.
7. We have considered the rival contentions of both the parties and perused the material on record.
8. The issue involved in these appeals is concerned with the interpretation of provisions in Rule 4 (k) (vii) (a) of Bihar District Council, Secondary & Higher Secondary Teacher (Employment & Service Conditions) Manual 2006 as amended in 2008. As noticed earlier, Rule 4(k)(vii)(a) prescribes that the candidate must have passed graduation examination with minimum 45% marks from any recognized university. It is the contention of the State that the respondents do not fulfill the eligibility criteria as they possessed graduation degree from Hindi Vidyapeeth Deoghar which is not a recognized university. As noticed above, as per the direction of the Patna High Court in CWJC No.15237/2007, the State of Bihar examined the matter and by an order dated 25.11.2008 held that degree of Sahityaalankar cannot be a valid degree for appointment as teacher. Para 6 of the Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 15/33 said order reads as under:-
"In Bihar District Council/Urban Body Secondary/Higher Secondary (Employment and Service Conditions) Manual, 2006, there is no provision to employing on any equivalent degree. Besides it, for employment, after deciding the all phases, the degree of "Sahityaalankar" given by Deoghar Vidyapeeth and other many degrees have not been decided recognized." Mainly, the holder of Sahityaalankar Degree appear only at exam of some Sahitya papers while general B.A. pass the exam of graduation in many papers, which is more useful for education, due to this reason the degree of Sahityaalankar from Deoghar Vidyapeeth is not valid for employment."
Contention of the appellants is that pursuant to the above, the State sent instructions to all the districts vide Order dated 13.12.2008 directing them to have appointment of teachers and librarians in accordance with Recruitment Rules 2006 as amended in 2008 and notification governing the validity of degrees.
9. On behalf of the State, it is further submitted that the validity of Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 16/33 Sahityaalankar degree from the Hindi Vidyapeeth Deoghar and its equivalence with the graduation degree has been considered in detail by the Patna High Court in subsequent decisions filed by the State of Bihar in CWJC No.13343/2011 and several other connected matters. It is submitted that in the above batch matters, High Court has rejected the claim of the petitioners thereon that the Degree of Sahityaalankar is equivalent to graduation degree and the State of Bihar heavily relies upon the said judgment in CWJC No.13343/2011 and batch matters. It was also submitted that the letter dated 11.01.1991 should be read in consonance with earlier circular with respect to Hindi Vidyapeeth Deoghar wherein it has been mentioned that any recognition given to such degrees including Sahityaalankar is only for the purpose of Hindi examination and not at par with graduation or equivalence and in this regard reliance is placed upon Press Note dated 05.05.1988 issued by the Central Government.
10. Having regard to the stand of the appellants and reliance placed upon order dated 25.11.2008 and the Press Note dated 05.05.1988 and the subsequent decision in CWJC 13343/2011 etc. and in the interest of justice without commenting on the merit of the case, we deem it necessary to remit the matter back to the High Court for consideration afresh. Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 17/33
11. In the light of the aforesaid discussion, the impugned order is set aside and the same is remitted back to the High Court for consideration of the matter afresh after affording sufficient opportunity to both the parties. Liberty granted to the parties to file additional documents/pleadings. We request the High Court to dispose of the matter as expeditiously as possible. The appeals are disposed of accordingly. Consequently, intervention application stands disposed of granting liberty to the interveners to approach the High Court in accordance with law. In the facts and circumstances of the case, we make no order as to costs."
5. It appears that before the Apex Court the argument advanced on behalf of the State was, that in view of the notification by the Human Resources Department that the degree of Sahityalankar awarded by Deoghar Vidyapeeth is not valid for employment which was further sought to be substantiated with the aid of the Press Note dated 05.05.1988 issued by the Central Government and a subsequent judgment of this Court by a learned Single Judge in the case of Reeta Srivastava & Ors. State of Bihar & Ors., reported in 2012 (3) PLJR 353, it was contended that the claim of the petitioners Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 18/33 cannot be accepted, inasmuch as, the Human Resources Department vide its notification dated 27.08.2008 had not treated the said degree obtained by the petitioners as equivalent to Graduation. Consequently, the argument was that they were not possessed of the minimum eligibility educational qualifications and, therefore, they could not claim employment.
6. The Apex Court, as is evident from the judgment extracted hereinabove, proceeded to set aside the judgment of the High Court without commenting on the merits of the case for a consideration afresh in the light of the judgment of the learned Single Judge referred to hereinabove, the press note of the Central Government as also the notification issued by the Government of Bihar through the Human Resources Department referred to hereinabove.
7. This is how on remittance, the matter has been heard by us where during the pendency of these writ petitions and appeals the State Government has come up with two notifications dated 08.04.2016 and 24.08.2017. The said notifications have a direct bearing on the issue involved and, therefore, we reproduce the said notifications hereinunder:
"fcgkj ljdkj lkekU; iz"kklu foHkkx AA vf/klwpuk AA Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 19/33 iVuk& 15] fnukad 8-4-2016 i=kad&3@,e0&15@2015 lk0iz0 5267@ lkekU; iz"kklu foHkkx (rRdkyhu dkfeZd ,oa izf"k{k.k foHkkx) ds vkns'k Kkikad& 8@vkj0 1&303@84 dk0& 541 fnukad&11 tuojh] 1991 }kjk ljdkjh lsokvksa esa fu;qfDr gsrq fgUnh fo|kihB] nso?kj }kjk nh tkus okyh mikf/k;ksa] ;Fkk& izosf"kdk] lkfgR;Hkw'k.k ,oa lkfgR;kyadkj (Lukrd ds led{k) dks dze"k% eSV~zhd] vkbZ0,0 ,oa ch0,0 ds led{k dfri; "krksZa ds v/khu ekU;rk iznku dh x;h FkhA 2- fgUnh fo|kihB nso?kj }kjk iznRr "lkfgR;kyadkj" dh mikf/k dh ekU;rk ds laca/k esa lh0MCyw0ts0lh0 la0& 13343@2011 esa fnukad& 07-05-2012 dks ekuuh; mPp U;k;ky;] iVuk }kjk ikfjr U;k;kns'k ds voyksdu ls Kkr gksrk gS fd ekuuh; mPp U;k;ky; us u dsoy lkfgR;kyadkj dh mikf/k dh ekU;rk ds laca/k esa viuk fopkj j[kk gS] cfYd dsUnzh; fgUnh funs'kky; }kjk fuxZr fnukad& 05&05&1998 ds izsl uksV ds vk/kkj ij LoSfPNd laLFkkuksa }kjk iznRr lfVZfQdsV] fMxzh ,oa fMIyksek dh mikf/k dks gkbZ Ldwy] bUVjehfM,V vFkok ch0,0 ds led{k ugha ekuk gSA vr% ekuuh; mPp U;k;ky; dh mi;qZDr U;k;kns'k dk lkfgR;kyadkj dh mikf/k ds lkFk&lkFk izosf'kdk ,oa lkfgR;Hkw"k.k dh mikf/k ds vk/kkj ij izkIr ukSdjh ,oa izksUufr ij iM+us okys izHkko ,oa Hkfo"; esa blds vk/kkj ij jkT; esa ljdkjh lsok esa fu;qfDr vFkok izksUufr dk iz'u ljdkj ds le{k fopkjk/khu FkkA 4- f"k{kk foHkkx (rRdkyhu ekuo lalk/ku foHkkx) }kjk fcgkj jkT; ds izkjafHkd ,oa ek/;fed@mPprj ek/;fed fo|ky;ksa esa f'k{kdksa ds fu;kstu gsrq fMxzh@mikf/k;ksa dh ekU;rk rFkk led{krk ds laca/k esa fuxZr vkns'k Kkikad dze'k% 3152 fnukad 25-08-2008 ,oa 1346 fnukad& 27-08- 2008 }kjk fgUnh fo|kihB] nso?kj }kjk iznRr izosf'kdk] lkfgR;Hkw"k.k ,oa lkfgR;kyadkj dh mikf/k;ksa dks izkjafHkd@ek/;fed ,oa mPprj ek/;fed fo| ky;ksa esa f'k{kd fu;kstu gsrq iwoZ esa gh vekU; ?kksf"kr fd;k tk pqdk gSA 5- mi;qZDr of.kZr rF;ksa ,oa lh0MCyw0ts0lh0ua0& 13343@2011 esa ekuuh; mPp U;k;ky; iVuk }kjk ikfjr fnukad& 07-05-2012 ds leqfDr;ksa (Observation) ,oa U;k;kns'k ds vkyksd esa leqfpr fopkjksijkar fgUnh fo}kihB] nso?kj }kjk iznRr fofHkUu mikf/k;ksa dh ekU;rk laca/kh foHkkxh; vkns'k Kkikad& 8@vkj01&303@84dk0& 541 fnukad& 11 tuojh] 1991 dks Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 20/33 mDr U;k;kns'k dh frfFk vFkkZr~ fnukad& 07-05-2012 ls fujLr fd;k tkrk gSA mDr frfFk ls iwoZ fgUnh fo|kihB] nso?kj }kjk iznRr fofHkUu mikf/k;ksa ds vk/kkj ij dh x;h fu;qfDr@izksUufr ij bldk dksbZ izHkko ugha iM+sxkA fcgkj jkT;iky ds vkns'k ls (vf'ouh nRrk=s; Bkdjs] Hkk0iz0ls0) ljdkj ds vij lfpo Kki la[;k&3@,e0&15@2015 lk0iz0 5267@ iVuk&15] fnukad 8-4-2016 izfrfyfi%& v/kh{kd] lfpoky; eqnz.kky;] xqytkjckx] iVuk@E- Gazettet dks"kkax] foRr foHkkx] fcgkj] iVuk dks fcgkj jkti= ds vlk/kkj.k vad esa izdk'kukFkZ izsf"krA (vf'ouh nRrk=s; Bkdjs] Hkk0iz0ls0) ljdkj ds vij lfpo Kki la[;k&3@,e0&15@2015 lk0iz0 5267@ iVuk&15] fnukad 8-4-2016 izfrfyfi%& lHkh foHkkx@lHkh foHkkxk/;{k@ lHkh izeaMyh; vk;qDr@ lHkh ftyk inkf/kdkjh@ fcgkj yksd lsok vk;ksx@ fcgkj deZpkjh p;u vk;ksx@ fcikMZ] okfYe] iVuk dks lwpukFkZ ,oa vko';d dkjZokbZ gsrq izsf"krA (vf'ouh nRrk=s; Bkdjs] Hkk0iz0ls0) ljdkj ds vij lfpo "fcgkj ljdkj lkekU; iz'kklu foHkkx AA vf/klwpuk AA iVuk& 15] fnukad& 24&8&2017 iz=kad& 3@,e0&15@2015 lk0iz0 10878@ lkekU; iz'kklu foHkkx (rRdkyhu dkfeZd ,oa izf'k{k.k foHkkx) ds vkns'k Kkikad& 8@vkj0 1&303@84 dk0& 541 fnukad 11 tuojh] 1991 }kjk ljdkjh lsokvksa esa fu;qfDr gsrq fgUnh fo|kihB] nso?kj }kjk nh tkus okyh mikf/k;ksa ;Fkk& izosf'kdk] Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 21/33 lkfgR;Hkw"k.k ,oa lkfgR;kyadkj (Lukrd ds led{k) dks dze'k% eSV~zhd] vkbZ0,0 ,oa ch0,0 ds led{k dfri; "krksZa ds v/khu ekU;rk iznku dh x;h FkhA 2- fgUnh fo|kihB nso?kj }kjk iznRr lkfgR;kyadkj dh mikf/k dh ekU;rk ds laca/k esa lh0MCYw0ts0lh0la0& 13343@2011 esa fnukad& 07-05- 2012 dks ekuuh; mPp U;k;ky;] iVuk }kjk ikfjr U;k;kns'k ds vuqikyu esa foHkkxh; vf/klwpuk Kkikad& 5267 fnukad 08-04-2016 }kjk fuEukafdr fu.kZ; vf/klwfpr fd;k x;kA lh0MCyw0ts0lh0 ua0& 13343@2011 esa ekuuh; mPp U;k;ky; iVuk }kjk ikfjr fnukad& 07-05-2012 ds leqfDr;ksa (Observation) ,oa U;k;kns'k ds vkyksd esa leqfpr fopkjksijkar fgUnh fo|kihB] nso?kj }kjk iznRr fofHkUu mikf/k;ksa dh ekU;rk laca/kh foHkkxh; vkns'k Kkikad& 8@vkj0 1 303@84 dk0 541 fnukad& 11 tuojh] 1991 dks mDr U;k;kns'k dh frfFk vFkkZr fnukad 07-05-2012 ls fujLr fd;k tkrk gSA mDr frfFk ls iwoZ fgUnh fo|kihB] nso?kj }kjk iznRr fofHkUu mikf/k;ksa ds vk/kkj ij dh x;h fu;qfDr@izksUufr ij bldk dksbZ izHkko ugha iM+sxkA 3- mDr fu.kZ; ds laca/k esa dfri; foHkkxksa ls fnukad 07-05- 2012 ds iwoZ fgUnh fo|kihB] nso?kj }kjk iznRr fofHkUu mikf/k;ksa ds vk/kkj ij fnukad 07-05-2012 ls vf/klwpuk fuxZr fd;s tkus dh frfFk 08-04-2016 ds chp dh x;h fu;qfDr@izksUufr ds laca/k esa Li"V fn'kk funs'k miyC/k djkus dk vuqjks/k izkIr gqvkA 4- izklafxd ekeys esa fo}ku egkf/koDrk }kjk fn;s x;s ijke'kZ dk dk;Zdkjh va'k fuEuor gS "Thus in my opinion, the clause simply means that appointments/promotions made/given on the basis of certificates issued by Hindi Vidyapeeth, Deoghar prior to 07.05.2012 until the issuance of the notification by the G.A.D. dated 08.04.2016 shall not be affected.
This also makes clear that no further appointments/promotions can be given on the basis of certificates granted by Hindi Vidyapeeth, Deoghar treating it Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 22/33 equivalent to Matric, I.A. and B.A."
5. vr% lE;d fopkjksijkar Li"V fd;k tkrk gS fd "fgUnh fo}kihB] nso?kj }kjk fnukad& 07-05-2012 ls iwoZ iznRr mikf/k;ksa ds vk/kkj ij fnukad 07-05-2012 ls vf/klwpuk Kkikad& 5207 fnukad& 08-04-2016 fuxZr gksus ds chp (vFkkZr~ fnukad 08-04-2016 rd) dh x;h fu;qfDr@izksUufr mDr vf/klwpuk ls vizHkkfor jgsxhA ijUrq fnukad 08-04-2016 ds i'pkr~ mDr mikf/k;ksa ds vk/kkj ij dksbZ fu;qfDr@izksUufr ugha dh tk ldsxhA fcgkj jkT;iky ds vkns'k ls (jktsUnz jke) ljdkj ds vij lfpo Kki la[;k&3 @ ,e0 15@2015 lk0iz0 10878@iVuk& 15] fnukad 24&8&2017 izfrfyfi%& izHkkjh inkf/kdkjh] bZ&xtV dks"kkax] foRr foHkkx] fcgkj] iVuk dks fcgkj jkti= ds vlk/kkj.k vad esa izdk'kukFkZ izsf"krA (jktsUnz jke) ljdkj ds vij lfpo Kki la[;k&3 @ ,e0& 15@2015 lk0iz0 10878@iVuk& 15] fnukad 24&8&2017 izfrfyfi%& lHkh foHkkx@lHkh foHkkxk/;{k@ lHkh izeaMyh; vk;qDr@ lHkh ftyk inkf/kdkjh@ fcgkj yksd lsok vk;ksx@ fcgkj deZpkjh p;u vk;ksx@ fcikMZ@ckfYe] iVuk dks lwpukFkZ ,oa vko';d dkjZokbZ gsrq izsf"krA (jktsUnz jke) ljdkj ds vij lfpo
8. The contention raised on behalf of the petitioners is that even assuming for the sake of arguments that the challenge raised to the rules as being ultra vires may be kept aside for the time being, then in that event this subsequent Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 23/33 development fortifies the stand of the petitioners and they are entitled to the benefits under the said notifications. It may be pointed out that one of the petitioners Sanjay Kumar who is possessed of a degree of Sahityalankar obtained prior to the year 2008 was an applicant and he was offered appointment on 26.12.2015 which is prior to the aforesaid two notifications. The other writ-petitioner Azad Kumar Singh has been appointed on 11.10.2014 which is also prior to the date of the said notifications. The petitioner Sanjay Kumar's services were terminated on 13.02.2016 after the matter was remitted back by the Supreme Court whereas Azad Kumar Singh is still working.
9. It is in this background that we passed the following order on 11th July, 2019 calling upon the learned Advocate General to answer this issue:
"Heard Shri Bindhyachal Singh, learned counsel for the petitioner, and the learned Advocate General for the State of Bihar.
This writ petition was allowed on 17th of November, 2009. The issue raised in the petition is very simple, namely that the petitioner herein, who had applied for the post of Librarian, was possessed of the degree of Sahitya Alankar from Hindi Vidya Peeth, Deoghar which degree was not being accepted Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 24/33 as a valid degree equivalent to Graduation for the purpose of appointment on the said post.
The Division Bench held in favour of the petitioner against which the State of Bihar preferred a Special Leave Petition before the Apex Court that was converted into Civil Appeal No.4274 of 2014. The said appeals were allowed by the Apex Court on 6th January, 2016, but the matter was remanded to be considered again by the High Court. The petitioner had by that time joined his services, but the same came to be terminated on 13th February, 2016 after the Supreme Court judgement. The order has been assailed in I.A. No.219 of 2017.
Subsequent thereto, the Government issued a notification on 8th April, 2016 which has been filed as Annexure 7 to the aforesaid I.A. The said notification categorically states that the earlier notification giving equivalence on 11th January 1991 stands annulled with effect from 7th May, 2012 in the light of the decision of this Court in the case of Reeta Srivastava & Ors. vs. State of Bihar & Ors., reported in 2012 (3) P.L.J.R. 353. It may be noted that the date of delivery of the said judgement is 7.5.2012 and, therefore, the State Government appears to have made the notification effective from the date of the judgement of the learned Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 25/33 Single Judge. It may not be out of place to mention here that two L.P.A's. were filed against the aforesaid judgement of the learned Single Judge being L.P.A. No.953 of 2012 and L.P.A. No.1303 of 2012 as well as other connected L.P.A's that came to be dismissed on 26.11.2012. Consequently, the judgement dated 7.5.2012 of the learned Single Judge has been upheld by the Division Bench.
However, the notification dated 08.04.2016 categorically in the last sentence states that any appointment or promotion made on the basis of the degree awarded prior to 7.5.2012 shall not be affected.
A clarification was sought by different Departments in respect of the aforesaid notification and the State Government sought the opinion of the learned Advocate General whereafter it issued another notification on 24.8.2017 that has been brought on record along with I.A. No.7827 of 2017. The said notification specifically clarifies that any appointments made on the basis of a degree obtained prior to 7.5.2012 and between 7.5.2012 and 8.4.2016 shall remain unaffected.
The contention of the petitioner, therefore, is that in the present case, even though the advertisement was Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 26/33 made in the year 2006 and selections held thereafter, the petitioner had to fight his litigative battle and, ultimately, he was granted appointment on 26.12.2015. The petitioner, therefore, contends that this appointment having been made prior to 8.4.2016 stands saved under the notification dated 24.8.2017 read with the notification dated 8.4.2016.
It is, therefore, submitted that such appointment could not have been invalidated, yet the services of the petitioner have been terminated on 13th February, 2016 that has been challenged as noted above.
The learned Advocate General prays that the matter be taken up on Wednesday.
Put up on Wednesday i.e. 17th July, 2019."
10. The main plank of the argument of the learned Advocate General is to the effect that in view of the notification dated 27.08.2008 issued by the Human Resources Department, which has not been rescinded or modified till date, no employment could be given to a teacher who has to possess a Graduate qualification as prescribed under the rules and not an equivalent qualification as claimed by them which does not Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 27/33 stand recognized. He therefore laid emphasis on the fact that firstly the qualification of the writ-petitioner is from an Institution which is not recognized and secondly the said qualification is not equivalent as per the notifications of the State Government issued by the Human Resources Department.
11. Replying to the contention in relation to the notifications dated 08.04.2016 and 24.08.2017 he submits that these are notifications issued by the State Government through the General Administrative Department and the same would not apply in relation to appointment of teachers who are under the control of the Human Resources Department, Government of Bihar. His further contention is that they are to hold a specialized post where a qualification of Graduation is required as prescribed and any equivalent qualification is not permissible. He, therefore, submits that there is no question of any discrimination or arbitrariness or even unreasonableness so as to treat the petitioners to be ineligible. Commenting upon the two notifications referred to above he submits that these are notifications issued by the General Administrative Department of the Government of Bihar but they do not relate to the Human Resources Department and would not apply at all in respect of these two writ-petitioners or any other similarly situated Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 28/33 claimant. He has invited the attention of the Court to every line of the said notification to contend that even though the said notifications take notice of the developments in the present matter and relate to the Education Department, yet the notification dated 27.08.2008 cannot be said to have been affected in any manner so as to render any relief to the writ-
petitioners.
12. On behalf of the writ-petitioners a Division Bench judgment in L.P.A. No. 562 of 2015 Shilpi Singh Vs. State of Bihar and others has been pressed into service to urge that these issues were taken notice of and it has been held that those who were possessed of degrees prior to 27.08.2008, any subsequent disqualification arising out of the said notification would not affect the validity of the said degrees. We have considered the reasoning given in the said judgment and we entirely agree with the same.
13. Coming to the argument of the learned Advocate General on the two notifications referred to above, what we find is that it was only on account of this litigation in the Education Department that the entire matter travelled up to the Apex Court and it is the same issue which became the concern of the General Administrative Department, Government Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 29/33 of Bihar which is a wing of the same Government. We may clarify that the State Government in the name of His Excellency the Governor is empowered to issue notifications in respect of all subjects on which the Government can legislate under List-II as well as under List-III and, therefore, any executive instruction is clearly traceable to Article 162 of the Constitution of India. The notifications, therefore, issued by one Department or the other in the name of the Governor is a notification by the Government.
14. To clarify it further the notification dated 08.04.2016 has been communicated to all departments with a direction to take appropriate action. This is evident from the last note to the notification dated 08.04.2016 extracted hereinabove.
It is therefore more than evident, and with the utmost clarity, that the entire issue pertaining to the equivalence of qualification was not confined only to the General Administrative Department but was clearly made applicable to all departments of the Government irrespective of the nature of employment. The argument of the learned Advocate General so as to treat the employments in question in the present case being distinguishable from the other departments cannot be accepted, inasmuch as, it is in this very litigation that the matter has Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 30/33 travelled up to the Apex Court which has been noticed by the State Government for certifying the issue relating to all Government Departments.
15. Thus, the argument to split up the applicability of the said notifications and to apply only to the General Administrative Department is a futile argument, more so keeping in view the fact, that the said notification was further substantiated through the clarification in the notification dated 24th August, 2017 extracted hereinabove. We, therefore, find that the State itself has fortified the stand of the petitioners by issuing a clarification and which, therefore, clearly contradicts the arguments which have been advanced on behalf of the State.
We find no reason to accept any of the submissions on behalf of the State to the effect that the notifications dated 08.04.2016 and 24.08.2017 do not apply to the Education/Human Resources Department. The clarificatory notification also in its last note again mentions the fact that the same is being sent to all departments for information and appropriate action.
16. In the light of what has been concluded by us hereinabove, these writ petitions have to succeed on account of this subsequent development and we accordingly hold that the petitioners in both the writ petitions are entitled to the benefit of Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 31/33 the notifications dated 08.04.2016 and 24.08.2017 and consequently their appointments being prior to the issuance of the said notifications are saved thereunder. The petitioner Sanjay Kumar shall, therefore, be reinstated in service forthwith and his termination order dated 13.02.2016 that has been brought on record through I.A. No. 219 of 2017 is hereby quashed. Both the writ petitioners shall be treated to have been validly appointed of being possessed of the qualification referred to above and shall be entitled to all consequential benefits.
17. We may now proceed to consider the claim set forth in C.W.J.C. No. 16183 of 2012 that was referred to the Division Bench by a learned Single Judge as it raised the same issue and L.P.A. No. 894 of 2016. In these two matters the claim of the writ-petitioners and the appellant respectively are with regard to promotional benefits in the higher scale of pay after having served for 8 years as an Assistant Teacher. They were denied promotional pay-scale only on the ground that they did not possess the minimum eligibility qualification as prescribed and were claiming benefits on the strength of the degree of Sahityalankar from Deoghar Hindi Vidyapeeth. In view of what has been concluded by us hereinabove, the petitioner of C.W.J.C. No. 16183 of 2012 and the appellant of L.P.A. No. 894 Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 32/33 of 2016 are both entitled to the benefits of promotion and the same cannot be denied merely on the ground that they were possessed of an equivalent degree as referred to hereinabove. It is undisputed that these two are also in possession of the degree of Sahityalankar having been obtained prior to the year 2008.
Accordingly, C.W.J.C. No. 16183 of 2012 and L.P.A. No. 894 of 2016 are allowed. The impugned judgment of the learned Single Judge dated 28.03.2016 is set aside. Since both the candidates have prayed for a mandamus, we accordingly direct the competent authority to pass an appropriate order in the light of above within three weeks from the date of presentation of the certified copy of the order served on them with effect from the date they were entitled for such benefit together with all consequential benefits.
L.P.A. No. 1210 of 2010 and L.P.A. No. 307 of 2016
18. These two appeals have been filed by the State questioning the correctness of the judgment of the learned Single Judge whereby the respondent writ-petitioners have been extended the benefit of equivalent qualification having been obtained by them from Deoghar Hindi Vidyapeeth. In the light of what has been stated by us hereinabove, we do not find any Patna High Court CWJC No.5129 of 2009 dt.18-07-2019 33/33 merit in these two appeals which are hereby dismissed.
I.A. No. 6128 of 2016 in C.W.J.C. No. 5129 of 2009, I.A. No. 3543 of 2016 and 230 of 2017 in C.W.J.C. No. 5129 of 2009, I.A. No. 1 of 2017 (old I.A. No. 2917 of 2017) in C.W.J.C. No. 18039 of 2008), I.A. Nos. 6022 of 2015, 5951 of 2015 and 6865 of 2015 in L.P.A. No. 1210 of 2010:
19. All these Interlocutory Applications have been filed by candidates contending that they are entitled to similar benefits. We are of the opinion that they will have to prefer their individual writ petitions and, therefore, all the Interlocutory Applications are disposed of with liberty to all the applicants to approach the appropriate forum for the redressal of their grievances.
(Amreshwar Pratap Sahi, CJ) (Anjana Mishra, J) P.K.P./-
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