Himachal Pradesh High Court
Rajender Sharma vs State Of Himachal Pradesh & Another on 4 May, 2016
Bench: Mansoor Ahmad Mir, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.101 of 2011.
Judgment reserved on :20.4.2016.
.
Date of Decision : 4.05.2016.
Rajender Sharma ....Appellant.
Versus
State of Himachal Pradesh & another ...Respondents.
Coram:
of
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice The Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 Yes.
rt For the Appellant : Mr. J.L.Bhardwaj, Advocate.
For the Respondents : Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan, Mr. Romesh Verma, Additional Advocate Generals and Mr. J.K.Verma, Deputy Advocate General, for respondent No. 1.
Mr. Dalip Sharma, Senior Advocate with Ms. Nishi Goel, Advocate, for respondent No.2.
Sandeep Sharma, Judge By way of present appeal, appellant-petitioner-
namely Rajender Sharma has challenged the judgment dated 21st December, 2010 passed by learned Single Judge in CWP(T) No.8802 of 2008, thereby dismissing the petition preferred by the appellant-petitioner (for short "impugned judgment").
Whether reporters of the local papers may be allowed to see the judgment?
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2. Mr. J.L. Bhardwaj, learned counsel appearing on behalf of the appellant-petitioner submitted that the .
impugned judgment is liable to be set-aside being adverse in facts and law.
3. Briefly stated the facts necessary for adjudication of the present appeal are that the appellant-petitioner by of way of Original Application No.1415 of 2002, which later came to be registered as CWP(T) No.8802 of 2008 after abolition of the rt H.P. State Administrative Tribunal, Shimla, challenged the order of respondent-State i.e. order No.LLR-
B(2)-1/94, dated 17.7.2001 passed by respondent No.1, whereby the appellant- petitioner was not considered for promotion from the post of Deputy District Attorney to the post of District Attorney. Subsequently, the same came up for hearing before the learned Single Judge of this Court.
4. Feeling aggrieved and dissatisfied with the impugned judgment, the appellant-petitioner has filed instant LPA praying for the quashing of the impugned judgment and impugned order dated 17.7.2001, passed by respondent No. 1 promoting respondent No. 2 .
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5. Before adverting to the grounds, taken by the appellant-petitioner in the present appeal, it would be .
appropriate to refer here-in-below the reliefs claimed in the relief clause of CWP(T) No. 8802 of 2008, by the appellant-
petitioner:-
i) That the recommendations made by the DPC vide Notification dated 17.7.2001 (Annexure A-3) whereby of respondent No. 2 person junior to the applicant has been promoted be declared illegal and be set aside rt and quashed as such.
ii) That after summoning the record of the case non-
selection of the applicant and his super- session by his junior (respondent No.2) be declared illegal.
iii) That the respondent No. 1 may be directed to convene a Review DPC as on 25.6.2001 and in case the applicant is selected, his promotion may be ordered by reverting the respondent No. 2 w.e.f.
17.7.2001.
iv) That the respondent No. 1 be directed to promote the applicant if selected with all consequential benefits, such as, arrears of pay and seniority over the respondent No.2.
v) That the respondents may be directed to produce the entire record pertaining to the case of the applicant for the perusal of this Hon'ble Tribunal.
vi) That the respondents may be directed to pay the cost of this application throughout.
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vii) Any other order or direction which this Hon'ble Tribunal deem just and proper in the facts and circumstances of the case may kindly be passed in .
favour of the applicant and against the respondents.
6. In a nutshell, the appellant- petitioner by way of Original Application stated that he was appointed as Assistant Public Prosecutor, who was lateron designated as of Assistant District Attorney on 30.1.1984. As per his averments he was promoted as Deputy District Attorney on 19.1.1996 rt and he joined as such on 12.2.1996. He also stated in the original application that respondent-State has framed Recruitment and Promotion Rules(for short "R&P Rules") for the post of District Attorney (Class-1) in the Department of Prosecution, Himachal Pradesh and as per said Rules, the post of District Attorney is selection post, which is to be filled 100% by way of promotion from amongst the Deputy District Attorneys with five years regular service or regular combined with continuous ad-hoc(rendered upto 31.3.1991, if any) service in Grade-A. He further submitted that he, while working as Deputy District Attorney had successfully completed five years of regular service in the grade on 11.2.2001 and during this period he has maintained clean ::: Downloaded on - 15/04/2017 20:16:01 :::HCHP ...5...
unblemished service record and has served the department with utmost devotion and sincerity and has at no point of .
time been conveyed any adverse entries recorded in the ACRs against him. The appellant-petitioner also passed the prescribed departmental examination in the year, 1982-83.
He has also stated that after putting five years of regular of service as Deputy District Attorney, he acquired the eligibility for promotion to the next post of District Attorney in the year 2001 and he falls within the zone of consideration. He also rt placed on record copy of R&P Rules (Annexure A-1 annexed with the Original Application). A perusal of the R & P Rules suggests that Departmental Promotion Committee (for short "DPC") also provides that every member of the service has to pass Departmental Examination as prescribed in the Departmental Examination Rules to fall in the zone of consideration for the promotion to the next higher post.
7. The respondent-State had prepared list of Officers of Prosecution Department as on 31.10.2000, wherein his name was figuring at Sr. No.33 (Annexure A-2) vide notification dated 17.7.2002. Respondent No.1 promoted four Deputy District Attorneys to the post of District Attorney ::: Downloaded on - 15/04/2017 20:16:01 :::HCHP ...6...
including respondent No.2, copy of which notification is placed on record as Annexure A-3. The respondent No.2 .
was at Sr. No.34 in the list Annexure A-2, whereas the appellant-petitioner was at Sr. No.33 in the list and thus respondent No.2 was junior to appellant-petitioner.
8. The appellant-petitioner stated that while making of promotion, ACRs for previous five years were considered by the DPC held on 25.6.2002. He further stated that he performed the duties of District Attorney during the period rt from May, 1997 to December, 1997 as the post of District Attorney remained vacant during the relevant time. He also stated that respondent No.2 seems to have been graded outstanding in his ACRs for no special reasons. He stated that respondent No.2 was granted outstanding remarks in ACRs by way of personal favour by the then initial authority and definitely it had no concern with working of respondent No.2.
9. It is also stated that during previous five years he remained posted as Deputy District Attorney at Nahan w.e.f.
February 1996 to May 1999 and w.e.f. June 1999 onwards at Shimla. To the contrary, respondent No.2 remained posted at Solan from January 1996 to June, 1999 during which period ::: Downloaded on - 15/04/2017 20:16:01 :::HCHP ...7...
the Court of Additional District & Sessions Judge at Solan was not in function w.e.f. 25.5.1998 to 28.5.1999. Similarly, from .
June, 1999 to December 2000, respondent No.2 remained posted at Nahan and the Court of Additional District and Sessions Judge was not in function as no Presiding Officer was posted at Nahan. He further stated that during above of period respondent No.2 seems to have been graded outstanding for this period in his ACRs for no special reason.
The Comments of the reviewing authority which has given rt chance to D.P.C to grade respondent No.2 above the petitioner are not based on true facts and comparative performance of petitioner. He further stated that DPC has not taken into consideration all the material facts while promoting respondent No.2. He further stated that he has strong apprehension that his ACRs were toned down unlawfully in order to give favour to respondent No.2 and to supersede the appellant-petitioner. Subsequently, on 7.5.2002 appellant-petitioner made representation to respondent No.1 when he came to know with regard to the issuance of notification dated 17.7.2001, whereby respondent No.2 was promoted as District Attorney.
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10. Respondent No.1 filed reply to the petition and refuted all the allegations of favoritism and personal favour .
made by concerned authority to give undue benefit to respondent No.2. In their reply, they specifically stated that the post of District Attorney is a selection post and criteria to be followed in Merit-Cum- Seniority. Respondents in their of reply stated that in the year, 2000 one post fell vacant in the category of District Attorney and in the year, 2001 total three posts fell vacant. Accordingly, DPC was convened at the rt Govt./Department level under the chairmanship of respondent No.1 with other two members. For the vacancy of the year, 2000 of single post, total three candidates figuring at Sr.30 to 32 of Annexure A-2 were considered. Out of these three candidates, person at Sr.No.31 namely Sh.Bhim Singh Pathania was assessed higher in merit by the DPC, whereas person at Sr. No. 30 was found lower in merit.
However, for the single vacancy post of the year 2000, DPC recommended the name of Sh. Bhim Singh Pathania on the principle of merit-cum-seniority. Thereafter, for three vacancies of the year 2001, persons falling at Sr. No.30, 32 to 35 of Annexure A-2 being only five persons were considered.
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Accordingly, Sh. Akashay Kumar at Sr. No. 30 was ad-hoc promottee of 30.4.1993 and on regular basis w.e.f. 21.11.1994 .
was also liable to be considered. As per assessment made by DPC vis-à-vis five persons so mentioned above for first post respondent No.2 was assessed higher in merit, whereas the present appellant-petitioner and other three were assessed of lower in merit in comparison to him. Respondent-State further stated that respondent No.2 was recommended for promotion at Sr. No.1 for the first post of the year, 2001.The rt respondents-State specifically denied the allegations leveled by the appellant-petitioner that no adverse remarks have ever been made in his entire service career; therefore, he could not be superseded. Respondents-State also stated that when the principle of Merit-cum-Seniority was to be applied even persons who had no adverse remarks in their ACRs could be superseded by the junior.
11. As per Handbook on personnel matters, where it has been provided that while making promotion in such circumstances "Outstanding assessment" is always rated at the top, thereafter" Very good" and then "Good" subject to exceptions. Respondent specifically stated that in case of ::: Downloaded on - 15/04/2017 20:16:02 :::HCHP ...10...
the appellant-petitioner vis-à-vis respondent No.2, the assessment of merit so made by DPC was found higher, as .
such upon said recommendations the office order, Annexure A-3, pertaining to promotion as District Attorney has been issued against which no cause of action whatsoever accrues to the petitioner.
of
12. Perusal of the grounds taken in the LPA clearly suggests that they all were taken before the learned Single Judge, as such, the same are not required to be detailed rt herein for the sake of brevity. Mr. J.L.Bhardwaj, learned counsel strenuously argued that the impugned judgment is not based upon the correct appreciation of documents available on record and the same deserves to be quashed and set-aside. The 'outstanding' remarks can be given to the officers for specific performance and achievements justifying him during the assessment year. Further argued that learned Single Judge while passing the impugned judgment has erred while returning its findings with regard to favoritism and giving no special reason for outstanding entry in the ACR's of respondent No. 2. It was pointed out that the learned Single Judge has fallen in error in not calling for the record. He also ::: Downloaded on - 15/04/2017 20:16:02 :::HCHP ...11...
vehemently argued that the learned Single Judge has failed to acknowledge that in support of "outstanding" entry .
details of specific performance and achievements justifying the entry were not recorded, if so, never placed before the Court.
13. On the other hand, Mr. Shrawan Dogra, learned of Advocate General supported the impugned judgment and submitted that the impugned judgment does not call for any interference of this Court as it is based on correct rt appreciation of the material on record as well as rule in vogue. He vehemently argued that the appellant-petitioner has no cause of action to challenge the promotion of respondent No.2 when he himself was under the consideration zone and was considered along with respondent No.2. He also reiterated the stand of the respondents-State, whereby it was specifically averred that post of District Attorney is a selection post required to be filled 100% from amongst the Deputy District Attorney with five years regular service or regular combined with continuous ad-hoc(rendered upto 31.3.1991, if any) service in Grade-A. He also argued that the entire matter was ::: Downloaded on - 15/04/2017 20:16:02 :::HCHP ...12...
considered by the DPC headed by the Chairman of Himachal Pradesh Public Service Commission.
.
14. We have heard learned counsel representing the parties on both sides and perused the record.
15. It is undisputed that as per R&P Rules for the post of District Attorney (Class-1) in the Department of of Prosecution, the post of District Attorney is/was required to be filled 100% by way of promotion from amongst the Deputy District Attorneys with five years regular service. It is rt also not disputed before us that the appellant-petitioner as well as respondent No.2 both were eligible to be considered for the post of District Attorney in terms of the R&P Rules referred hereinabove. Admittedly, the appellant-petitioner has no where disputed the eligibility of respondent No.2 for his promotion to the post of District Attorney.
16. It is worthwhile to record herein that the appellant-petitioner has no where laid challenge whatsoever to the grading (outstanding) given by the concerned authority in favour of respondent No.2. To the contrary, he has stated that the DPC constituted for the purpose of promoting the eligible person to the post of ::: Downloaded on - 15/04/2017 20:16:02 :::HCHP ...13...
District Attorney has not carefully considered the ACR's of the previous five years of respondent No.2 and has prayed .
that the recommendation vide government notification dated 17.7.2001, whereby respondent No.2, who was junior to him has been promoted to be declared as illegal.
17. It is not understood as to how DPC could of be held responsible for awarding remarks in the ACR's of respondent No.2. The DPC had only to consider the ACR's of the previous five years of all the candidates who were under rt the zone of consideration for promotion. There is no material placed on record which suggests that the DPC has not taken into consideration all the material facts as were required to be taken at the time of making promotion to the post of District Attorney. Admittedly, the appellant-petitioner was also under the zone of consideration for promotion to the post of District Attorney and he was rightly considered also by the DPC but without placing on record any material, it cannot be accepted that ACR's of the appellant-petitioner were purposely toned down in favour of respondent No.2 with a view to supersede the appellant-petitioner.
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18. Much emphasis was laid by Mr. J.L.Bhardwaj, learned counsel during his arguments on the para-19.8.4 of .
Handbook on Personal Matters (Second Edition) Government of Himachal Pradesh Department of Personnel. Though, it has been duly taken care of by learned Single Judge in his judgment but the same is reproduced here-in-below:-
of " Abolition of grading column in A.C.Rs-Grading by DPC.
rt The general principles for promotion to selection posts provide that after excluding such of the officers in the field of choice who are considered unfit by the DPC or other selecting authority, the remaining officers should be classified as ' outstanding', Very Good' and 'Good' on the basis of merit, as determined by their respective records of service. It is entirely left to the D.P.C. or other selecting authority to make its own classification of the Officers being considered by them for promotion to selection posts, irrespective of the grading given to them by the reviewing officers in their confidential reports.
With the revision of forms of annual confidential reports it has been decided to dispense with the column in regard to the ::: Downloaded on - 15/04/2017 20:16:02 :::HCHP ...15...
grading of officers in the confidential reports. Though the column of grading in the existing C.R. form has been dispensed with yet the .
D.P.C. or other selecting authority should arrive at its own conclusions regarding the grading of the work of the officers under consideration on the basis of the total contents of the confidential reports of the of officers concerned. The principles for selection, will continue to apply, with reference to the grading to be given by the rtD.P.C on the overall content of the C.R. form."
19. A bare reading of clause 19.8.4 suggests that option has been left to D.P.C. or other selecting authority to make its own classification of the officers being considered by them for promotion to selection posts, irrespective of the grading given to them by the reviewing officers in their confidential reports. But such classification by DPC as per this para can be made on the basis of the total contents of the confidential reports of the officers concerned meaning thereby DPC while making selection to the post in question was required to make its own classification of the officers ignoring their grading given to them by reporting/reviewing officers in their confidential reports but admittedly that ::: Downloaded on - 15/04/2017 20:16:02 :::HCHP ...16...
classification could be made by relying upon the contents of the confidential reports of the officers concerned.
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20. Admittedly, in the present case appellant-
petitioner appears to be aggrieved with the grading 'Outstanding' awarded/ given to respondent No.2 by the reviewing authority not by DPC because it is an admitted of case that when the matter was considered by the DPC for promotion to the post of District Attorney, respondent No.2 was already granted grade 'outstanding' in his ACRs by his rt reviewing and initiating authority. It is not the DPC, which has awarded him 'outstanding' grade in his ACRs. The DPC has only found him above in merit after taking into consideration ACRs for the previous five years.
21. It would also be profitable to reproduce para 19.8.5 of Handbook on personal matters( Second Edition) Government of Himachal Pradesh Department of Personnel herein.
"Outstanding entry in A.C.Rs.
As per above decision, the column for grading has been dispensed with. It has been decided by the Government that the Reporting/reviewing officers will exercise great restraint while making an entry of an officer/official as 'Outstanding'. If ::: Downloaded on - 15/04/2017 20:16:02 :::HCHP ...17...
such an entry is to be made, details of specific performance and achievements justifying the entry should be recorded in the A.C.Rs of the .
officers/officials."
22. Perusal of the para quoted hereinabove suggests that there is no bar to record entry, if any, 'Outstanding' 'Very Good' and 'Good' by reporting /reviewing officers.
of Admittedly, as per para (supra), reporting/ reviewing officer should exercise great restraint while making an entry of an rt officer/officials as ' Outstanding' and even of making such details of specific performance and achievements justifying the entry should be recorded in the ACRs of the officers/ officials. Contention of Mr. Bhardwaj is that it was incumbent upon the DPC to look into the reasons which should have been recorded in terms of para (supra) and it ought not have considered such 'Outstanding' entry while considering respondent No.2 for promotion cannot be accepted.
23. In the present case, the appellant-petitioner neither has opted to implead concerned reporting/ reviewing officer as a party respondent nor has he alleged any mala-fide against him. The only bald allegations of favoritism have been made. No document worth has been ::: Downloaded on - 15/04/2017 20:16:02 :::HCHP ...18...
placed on record to suggest that personal favour was shown to respondent No.2 and the then reporting/reviewing officer .
had acted in violation of the para-19.8.5 of the Handbook on the personal matters.
24. Learned Single Judge has rightly pointed out that para-19.8.5 nowhere provides that entry of 'Outstanding' has of been dispensed with. It only talks that there should be the reasons recorded justifying the entry of 'Outstanding'. We have not been able to lay our attention to any averments rt made in the Original Application to the effect that entry of 'Outstanding' of respondent No.2 has not been written in the manner provided in para 19.8.5. It is also not understood as to why the person who had made entry in ACR's was not impleaded as party respondent. Moreover, there is no challenge, whatsoever, to the ACRs of respondent No.2. To the contrary, the appellant-petitioner has laid challenge to the decision of the DPC in promoting respondent No.2 to the post of District Attorney, which had actually made its own comparative statement of all eligible candidates after perusing the ACRS of all the eligible candidates. If the appellant-petitioner at all was aggrieved ::: Downloaded on - 15/04/2017 20:16:02 :::HCHP ...19...
with the awarding of 'Outstanding' entry in favour of respondent No.2, it was required to be specifically .
challenged by way of filing independent petition. In the absence of specific challenge to the A.C.Rs recorded in favour of respondent No.2, we do not see any reason to interfere with the same that too in the present facts and of circumstances of the case.
25. Learned Single Judge has rightly recorded that in the absence of the pleadings of the petitioner that ACRs of rt respondent No.2 overall could not have been assessed better in merit in comparison to petitioner, he is not entitled to the relief as claimed in the petition. In totality of the facts narrated hereinabove, especially when the post of District Attorney is a selection post, where merit-cum-seniority is the criteria, merely, on the basis that respondent No.2 was one step below the petitioner in the seniority cannot claim promotion as a matter of right simply on the basis of seniority.
26. Mr. J.L.Bhardwaj, learned counsel representing the petitioner-appellant invited attention of this Court in support of his argument to the judgment passed by the ::: Downloaded on - 15/04/2017 20:16:02 :::HCHP ...20...
Hon'ble Apex Court in Dev Dutt versus Union of India and others (2008)8; Supreme Court Cases 725. It is apt to .
reproduce paras No.8, 12 and 13 of the judgment below:-
8. Learned counsel for the respondent relied on a decision of this Court in Vijay Kumar V. State of Maharashtra in which it was held that an un-
communicated adverse report should not form the of foundation to deny the benefits to a government servant when similar benefits are extended to his juniors. He also relied upon a decision of this Court in rt State of Gujarat V. Suryakant Chunilal Shah in which it was held: (SCC p.542, para 25).
"25. Purpose of adverse entries is primarily to forewarn the government servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the government servant to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance."
On the strength of the above decisions learned counsel for the respondent submitted that only an adverse entry needs to be communicated to an ::: Downloaded on - 15/04/2017 20:16:02 :::HCHP ...21...
employee. We do not agree. In our opinion every entry must be communicated to the employee concerned, so that he may have an opportunity of making a .
representation against it if he is aggrieved.
12. It has been held in Maneka Gandhi V. Union of India that arbitrariness violates Article 14 of the Constitution. In our opinion, the non- communication of an entry in the ACR of a public of servant is arbitrary because it deprives the employee concerned from making a representation against it and praying for its up-gradation. In our opinion, every rt entry in the annual confidential report of every employee under the State, whether he is in civil, judicial, police or other service (except the military) must be communicated to him, so as to enable him to make a representation against it, because non-
communication deprives the employee of the opportunity of making a representation against it which may affect his chances of being promoted ( or get some other benefits). Moreover, the object of writing the confidential report and making entries in them is to give an opportunity to a public servant to improve his performance, vide State of U.P. v. Yamuna Shanker Misra. Hence such non-communication is, in our opinion, arbitrary and hence violative of Article 14 of the Constitution.
13. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under ::: Downloaded on - 15/04/2017 20:16:02 :::HCHP ...22...
the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a .
reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry may adversely affect the employee's chances or of promotion (or getting some other benefit), because of when comparative merit is being considered for promotion (or some other benefit) a person having a "good" or "average" or "fair" entry certainly has less rt chances of being selected than a person having a "very good" or "outstanding" entry.
25. Lord Esher M.R. in Voinet V.Barrett observed:
"Natural justice is the natural sense of what is right and wrong."
27. The learned counsel for the appellant-petitioner has also placed reliance on the judgments passed by Hon'ble Apex Court in Abhijit Ghosh Dastidar Versus Union of India and others; (2009)16 Supreme Court Cases 146 and in Sukhdev Singh v. Union of India and Ors. 2013 (9) SCC 566.
28. After going through the judgments cited by learned counsel representing the appellant-petitioner, we have no hesitation to hold that these are not applicable in the facts and circumstances of the present case.
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29. It is well settled law that adverse entries/remarks whether "very good" "good" "average" or "poor" are .
required to be communicated to the employees working in govt. offices. All the judgments referred hereinabove clearly reiterate that the annual confidential reports are required to be communicated to the person concerned. Rather, the of Hon'ble Apex Court in Dev Dutt's case (supra) recommended for conveying of 'outstanding' grade as it would boost morale of a meritorious employee.
rt
30. By way of aforesaid judgments, Hon'ble Apex Court has held that every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him within a reasonable period, and it makes no difference whether there is a bench mark or not.
The Hon'ble Apex Court has observed that communication of entries and giving opportunity to represent against him is particularly important, on higher posts which are of pyramidical structure where often principle of elimination is followed in selection for promotion.
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31. Perusal of the averments made in the petition of the appellant-petitioners nowhere suggests that he is .
aggrieved by non-communication of adverse entries in his ACRS. As we have observed earlier that it was not the DPC who has actually awarded "outstanding" grade to respondent No. 2 but the same was graded by initiating/ of reviewing authority, which has not been made party in the present case and no mala-fide has been alleged against it.
32. rt In view of the discussions made hereinabove, the impugned judgment is well reasoned and legal one, needs no interference.
33. Accordingly, the impugned judgment is upheld and appeal is dismissed. Pending application(s), if any, shall also stand(s) disposed of.
(Mansoor Ahmad Mir)
Chief Justice
(Sandeep Sharma )
May 4, 2016 Judge
(shankar)
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