Telangana High Court
P.V.V. Subramanyam, Hyd And Another vs Secy. Union Of India, N Delhi And 3 Others on 22 November, 2023
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 7244 OF 2009
ORDER:
This Writ Petition is filed to 1) declare the modifications carried out to the Establishment Manual, 1976 (corrected up to 31.05.2006) in so far as it does away with the carry-forward principle and restricts the number of chances for appearing for the Sub-Inspector (Ministerial) Examination to 5, as arbitrary, illegal, without jurisdiction, ultra vires the Central Reserve Police Force Act, 1949 and Rules made thereunder; 2) also declare the communication in D.O.No. E.V.1/2007-Pers.2 of the Director General endorsed to the petitioners in reference No P.VII-2/08-CH-EC-1, dated 13.05.2008 as unsustainable; 3) consequently, direct the respondents to consider the case of the petitioners also for being promoted to the Post of Sub-Inspector (Ministerial) against the 25% quota by selection by a departmental examination and promote them if they are otherwise found suitable; d) all the benefits including seniority and monetary that would flow out of the declarations and directions sought for in the Writ Petition.
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2. Petitioners were stated to have been recruited as Assistant Sub-Inspector (Ministerial) in Central Reserve Police Force (hereinafter referred to as 'the Force' for short) and gave no scope for one to complain regarding maintenance of discipline and integrity expected of a member of a uniformed force.
Force is a creation of the Central Reserve Police Force Act, 1949. Section 18 of the Act empowers the Central Government, by notification in the Official Gazette, to make rules for carrying out the purposes of the Act and without the generality of the said power, it also empowers making of rules to provide for the matters provided in sub-section (2) thereof which includes regulating classes and grades of pay, pension and other remuneration of the members of the Force and their conditions of service in the Force. Laying down procedure is also contemplated therein. Exercising the said power, the Central Reserve Police Force Combatised (Group 'C' and Group 'D' posts) Recruitment Rules, 2003 (the Rules for the sake of brevity) were made and gazetted on 25.9.2003. The Preamble itself would state that earlier Rules were superseded. As per the Schedule appended to the Rules, the next promotion would be that of Sub-Inspector (Ministerial). The only method of recruitment prescribed for filling the vacancies is by promotion. The 3 Assistant Sub-Inspectors (Ministerial) who have rendered not less than 8 years of service and with not less than 5 years service clearing the departmental examination are promoted to the rank of Sub-Inspector (Ministerial), subject to availability of vacancies at 70% and 25% ratio respectively. 5% by transfer from amongst SI (Stenographers) in CRPF who qualify a departmental examination failing which by departmental examination and failing both, by promotion.
A compilation of the Rules is carried on by the Force in the form of an Establishment Manual. It provides the method and frequency of conducting the departmental examinations for filling up 25% of Sub-Inspectors (Ministerial). As per para 9.15.1, the examinations are to be held once in every year. Para 9.15.2 provides that in case there are sufficient persons on the list of qualified persons for filling up the existing as well as those anticipated vacancies during one year, the Director General may, in writing, dispense with holding of examination in a particular year. Thus, it was decided that the principle of carry-forward would be followed and the persons qualified will be adjusted as and when vacancies arise.
Having fulfilled the necessary qualification of putting 5 years of service, it is stated petitioners are eligible for 4 participating in Competitive Examination, however, in view of the fact that carry-forward principle was followed, Respondents have taken a decision not to hold examinations till such time those who qualified have been appointed. Examination was held on 15.12.2007, in which Petitioner No. 1 appeared and passed the examination and he was supposed to be appointed against the quota earmarked for this stream, however, a strange practice of considering the seniority was followed and marks obtained in the examination were not considered for the purposes of promotion. The persons shown up to 1348 in the Gradation List as on 1.1.1996 have been directed to be considered by the Departmental Promotion Committee. As petitioner No.1 was placed at 1705, though he was fully- qualified to be promoted, his candidature was not considered. As per the Establishment Manual, 1976 (corrected up to 31.5.2006), there would be no carry-forward principle and that number of chances available would also be only 5.
Therefore, petitioner No.1 was stated to have submitted representation dated 27.02.2008 seeking dispensing with clause / instructions for not carrying forward the qualified list for vacancy of subsequent years till fresh Assistant Sub- Inspectors (Ministerial) becomes eligible for appearing the 5 examination. He had pointed out that following the seniority in respect of 25% quota was running contrary to the very principle of having a Departmental Competitive Examination. There is no recruitment to the post of Assistant Sub-Inspector after 2001 and there would be no inconvenience that is likely to be caused to any person if the carry-forward principle is continued.
The 3rd respondent has rejected the representation by order dated 02.05.2008. A cursory look at the said rejection would leave no one in doubt that it is not a speaking order touching upon the points raised in his representation. Thus, the order suffers from being an unreasoned order and is liable to be set aside.
3. A counter-affidavit is filed by Respondents Nos.1 to
4. It is stated that departmental examination is normally conducted once in every year as per instructions laid down in paras 9.11 and 9.15 of CRPF Establishment Manual, 1976 (corrected up to 31.5.2006) for selection of SI(M) from the existing Assistant Sub-Inspector (Ministerial). A minimum pass marks of 50% in the aggregate with not less than 45% in each paper has been prescribed for General Category, however, the qualifying standard in favour of SC/ST candidate may be 6 relaxed by the competent authority. However, the selection of the qualified candidates is limited to the share of departmental examination quota in the vacancies of following vacancy year. The share of departmental examination quota has been fixed to the tune of 30% of the total vacancies in following manner:-
· i) 25% by selection through a departmental examination from amongst ASI(M)/non-combatised LDCs with not less than five years regular service in the grade in the CRPF, failing which by promotion. ii) 5% by transfer from amongst SI (Stenographer) in CRPF, who qualify a departmental examination failing which by departmental examination and failing both by promotion. The list of qualified candidates for one vacancy year is not carried forward to next vacancy year.
It is further stated that petitioners appeared in the departmental examination held on 15-12-2007 and they were declared pass in the said examination vide Office Order dated 14-1-2008. In order to fill up the vacancy of SI(M), during the vacancy year 2008-09, from the seniority quota of 70% as well as departmental examination quota of 30% (25% +5%), as indicated above, nominations of ASI (M) who were declared qualified in SI(M) departmental examination during 2007 up to gradation list No. 1348 as on 1/1/2006 were called for vide Dte. General Signal No. P.VIl-1/2008-Pers-III(DPC) dated 5/2/2008. As already qualified ASIs(M) were promoted up to gradation list No.1220 (as on 1/1/2006), · a second DPC up to gradation list No. 1474 (as on 1/1/2006) and supplementary DPC up to 7 gradation list No.1604 (as on 1/1/2006) were called for to assess suitability of qualified candidates for promotion under 25% quota vide Dte. General Signal No.P.VII-1/2008- PERS.III(DPC) dated 28/7/2008 and 01/12/2008 respectively and .promoted up to gradation list No.1604 (as on 1/1/2006). Since petitioners were figured Sl.Nos. 1705 and 1731 respectively, they could not fall under the zone of consideration, thus not considered for promotion.
Earlier, petitioner No.1 submitted representations dated 27.02.2008 and 20.02.2009 to the Director General, RPF and DIG (Pers) respectively to dispense with the clause / instructions for not carrying forward the list of qualified. The representations were examined under the relevant instructions and the decision of the competent authority was conveyed to him through administrative authorities vide Dte. General DO letter No. E.V-1/2007-Pers-3 dated 2/5/2008 and E. V- 1/2008-Pers 3 dated 12/3/2009. However, the petitioners have filed a writ petition to consider their case for promotion to the post of Sub-Inspector against the 25% quota and release seniority and monetary benefits.
It is stated that earlier, entry level in Group 'C' of Ministerial Cadre in CRPF was ASI(M). However, during 2002, 8 the entry level grade was downgraded as HC(M), which necessitated the change in the existing Recruitment Rules. Accordingly, CRPF Combatised (Group 'C' and Group 'D') Recruitment Rules, 2003 were framed wherein the post of SI(M) was specified as a selection post and the same is to be filled up 100% by promotion and no provision for departmental examination exists. Further, as per Note (2) below para No. 3.14 of Schedule of RR, 2003 issued vide MHA Notification dated 25.9.2003, staff who are already working in the stenographic Cadre and Ministerial Cadre will continue to be governed under existing Recruitment Rules issued vide MHA Notification No. R.IX-1/88-Adm-3-CRPF-Pers II dated 14/3/1989 (GSR No. 192) in which post of SI(M) has been declared as non-selection and the method of its filling by promotion on quota basis in the following manner has been made vide para 9.11 of Establishment Manual, 1976 (corrected up to 31/5/2006):
70% vacancies by promotion from amongst the ASI(M)/Non combatised LDCs. who have rendered not less than 8 years regular service in the grade in the CRPF;
25% by selection through a departmental examination from amongst ASI(M)/non-combatised LDCs with 9 not less than five years regular service in the grade in the CRPF, failing which by promotion;
5% by transfer from amongst SI (Stenographer) in CRPF, who .qualify a departmental examination failing by departmental examination and failing both by promotion.
Earlier, as per provision contained in sub- para No. 2 of para 9.15 of CRPF Establishment Manual, 1976 (corrected up to 31/3/1989) in case there are sufficient persons on the list of qualified persons for filling up the existing as well as those anticipated vacancies during a course of one year, the Director General may in writing dispense with holding of examination in a particular year. In this regard it is submitted that after in- depth examination of the matter, a policy decision regarding not to carry-forward the list of qualified candidates for one vacancy year to the next vacancy year was taken and accordingly necessary amendment in the Establishment Manual was. made and incorporated in sub para No.2 of para No. 9.15 of Establishment Manual, 1976 (corrected up to 31/5/2006) which inter alia reads as under:-
"The SI(M) departmental examination will be held every year. However, the selection of qualified candidates will be limited to the share of departmental examination quota in the vacancies of following 10 vacancy years. Thus, the list of qualified candidates for one vacancy year will not be carried forward to next vacancy year."
The petitioners are appointees of 2001 and governed under the Rules issued vide GSR No. 192 which clearly specify the post of SI(M) as a non-selection post. As such provision made in para 9.15 of Establishment Manual, 1976 regarding not to carry forward the list of qualified candidates from one vacancy year to the next vacancy year is applicable in the case of petitioners.
It is stated that earlier, as per provision contained in sub para No. 2 of para 9.15 of Establishment Manual, 1976 (corrected up to 31/3/1989) in case there are sufficient persons on the list of qualified persons for filling up the existing as well as those anticipated vacancies during a course of one year, the Director General may in writing dispense with holding of examination in a particular year. In this regard it is submitted that after in-depth examination of the matter a policy decision regarding not to carry forward the list of qualified candidates for one vacancy year to the next vacancy year was taken and accordingly necessary amendment in the Establishment Manual was made and incorporated in sub para No.2 of para No. 9.15 of 11 Establishment Manual, 1976 (corrected upto 31/5/2006) which inter alia reads as under.
"The Sl(M) departmental examination will be held every year. However, the selection of qualified candidates will be limited to the share of departmental examination quota in the vacancies of following vacancy years. Thus, the list of qualified candidates for one vacancy year will not be carried forward to next vacancy year."
All those in the feeder grade who have put in 5 years of service are eligible to appear for the examination. Every year more and more new personnel become eligible. Therefore, a wait list of qualified candidates is not kept or the list is not carried forward. If it is done the new personnel who become eligible will be deprived of a chance till the whole lot of personnel in the wait list are exhausted. Thus the policy to carry forward the list of qualified candidates from one vacancy year to the next vacancy year has not been adopted.
As regards making of rules and instructions, it is submitted that the Central Govt. has been conferred powers to make rule under section 18 of CRPF Act, 1949 and the DG or under his direction Additional DG or IG have also been empowered to issue instruction from time to time to regulate the working of Force in exercise of powers vested in Rule 4(a) of CRPF Rules, 1955 Thus, the contention of petitioners is not 12 tenable as instructions with regard to the method of filling of post of SI(M), as incorporated in para 9.11 and 9.15 of Establishment Manual, 1976 (corrected upto 31/5/2006) has been issued under the statutory powers vested in competent authority.
It is submitted that all those in the feeder grade who have put in 5 years of service are eligible to appear for the Sl(M) departmental examination being conducted in accordance with the instructions contained in para 9.15 of Establishment Manual, 1976 (corrected upto 31/5/2006). This examination is not a competitive examination but it is a qualifying examination in which a minimum marks of 50% in the aggregate with not less than 45% in each paper for the candidates belong to 'General' category has been prescribed vide sub para 7 of para 9.15 of said Establishment Manual. All those ASl(M) who obtain the marks as above are declared pass in the said examination. Thus, petitioner's contention that the SI(M) departmental examination is a competitive examination is not tenable. As regards non-conducting of the said examination for 5 years it is submitted that as per provision contained in sub para 2 of 9.15 of Establishment Manual, 1976,(corrected upto 31/3/1989) "in case, there are sufficient persons on the list of qualified persons 13 for filling up the existing as well as those anticipated vacancies during a course of one year, the DG may in writing dispense with holding of examination in a particular year. Accordingly, the said examination was not conducted during the year 2001 to 2004 after taking approval of competent authority as sufficient qualified persons were available. However, after detailed examination and discussion in the Directorate General, the decision not to carry forward the list of qualified candidates for departmental promotion quota to the rank of Sl(M) was taken and an amendment in sub para 2 of para No. 9.15 of the Establishment Manual, 1976 was made and incorporated in Establishment Manual, 1976 (corrected upto 31/5/2006) by the competent authority which inter alia reads as under:-
"The SI(M) departmental examination will be held every year. However, the selection of the qualified candidates will be limited to the share of departmental examination quota in the vacancies of following vacancy year. Thus, the list of qualified candidates for one vacancy year will not be carried forward to next vacancy year."
In order to fill up the vacancies of SI(M) for the vacancy year 2008-09 from 25% quota, only 30 candidates came into the zone of consideration (i.e. ·upto gradation list No. 1348 as on 1/1/2006) and the petitioners could not find place in it as their names were figuring at gradation list No. 1705 and 1731 (as on 1/1/2006) respectively. Thus, their names were not 14 included in the list of 30 qualified candidates for consideration by the Departmental Promotion Committee. Later, second DPC and supplementary DPCs were constituted to fill up the vacancies of SI(M) in the vacancy year 2008-09 as such more qualified candidates i.e. upto gradation list No. 1604 (as on 1/1/2006) were considered for promotion under from 25% quota.
It is submitted that in order to fill up the vacancy of SI(M), during the vacancy year 2008-09, from the seniority quota of 70% as well as the departmental examination quota of 30% (25% +5%), as indicated above, nominations of qualified ASI (M) upto gradation list No. 1348 as on 1/1/2006 were called for vide Dte. General Signal No. P.VII-1/2008-Pers-III(DPC) dated 5/2/2008. A second DPC upto gradation list No. 1474 as on 1/1/2006 and subsequent DPC upto gradation list No.1604 as on 1/1/2006 were called to assess their suitability for promotion by a Departmental Promotion Committee (DPC) vide Dte. General Signal No.P.VII-1/2008- PERS.III(DPC) dated 28/7/2008 and 01/12/2008 respectively. Since the gradation list number of above petitioners were 1705 and 1731 respectively (as on 1/1/2006) as such they could not fall under the zone of consideration, thus not considered for promotion by 15 the DPC. As per provision contained in sub-para 2 of para No.9.15 of Establishment Manual, 1976 (corrected upto 31/5/2006), there is provision that the list of qualified candidates for one vacancy year will not be carried forward to next vacancy year. Further, as per provision contained in sub para 5 of para No. 9.15 of Establishment Manual, 1976 (corrected upto 31/5/200p) (Annexure-1), there is provision that eligible candidates will get only five chance to pass the examination.
It is submitted that the 1st petitioner's representation dated 27/2/2008 addressed to the Director General, CRPF to dispense with the clause/instructions for not carrying forward the list of qualified candidates of one vacancy year to next vacancy year was examined under the relevant instructions and the decision of the competent authority was conveyed to him through his administrative authorities vide Directorate General CRPF DO letter No. E.V-1/2007-Pers-3 dated 2/5/2008. The decision regarding not to carry forward the list of qualified candidates for one vacancy year to the next vacancy year was a policy decision taken after in-depth examination of the matter by the competent authority and the same was incorporated in sub para 2 of para 9.15 of 16 Establishment Manual, 1976 (corrected upto 31/5/2006). All those in the feeder grade who have put in 5 years of service are eligible to appear for the examination. Every year more and more new personnel become eligible. Therefore, a wait list of qualified candidates is not kept or the list is not carried forward. If it is done the new personnel who have become eligible will be deprived of a chance till the whole lot of personnel in the wait list are exhausted. Hence, every year the Departmental Examination is conducted. Thus, plea of petitioners to carry forward the list of qualified candidates is not tenable as it will be contrary to the provision of the Establishment Manual-1976. As discussed in preceding para No. 7 and 8, the SI(M) departmental examination is not a competitive examination but it is a qualifying examination in which a candidate is declared pass who obtain the minimum prescribed marks as prescribed in sub-para 7 of para 9.15 (Annexure-1) of said Establishment Manual. During 2002, the entry level in group 'C' of ministerial cadre in CRPF was downgraded from ASI(M) to HC(M) as such recruitment of ASl(M) was stopped accordingly. However, all the directly appointed ASI(M) will continue to appear in the Sl(M) departmental examination till whole lot of ASI(M) are exhausted.
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4. Reply affidavit has also been filed by petitioners. It is stated that even going by the rule position, as admitted by the respondents, 30% of those vacancies must fall to the share of Departmental Examination Quota and that works out to nine posts, however, for the reasons best known, only seven vacancies have been filled by this method. If that is considered, they would have to be promoted. It is stated that the question of a senior being promoted in preference to the other would arise in cases where promotion is to 70% quota. If interpretation of respondents is taken, there would be no difference between promotion quota and examination quota and rules prescribing the quota between the two streams cannot be interpreted in the manner which scuttles the very purpose of its making. Decision to dispense with the principle of carrying forward the candidates who have passed the examination for being appointed to the vacancies available for the next year has been taken without application of mind and any action of the State which suffers from non-application of mind would be arbitrary and such action would violate the equality clause guaranteed under Articles 14 and 16 of the Constitution. It is stated that with the restriction of number of chances to 5, doing away with the carry forward principle and most importantly picking up any the 18 seniors in the gradation list without regard to the merit would leave the very source of promotion meaningless. It is stated that even by the date of administrative decision to do away with carry-forward rule, there were no candidates in the wait list and the same was exhausted. Candidates who have been qualified in 2005 and 2006 earned their promotions in 2006 and 2007 and it is only of six of the candidates including petitioners who are adversely affected by the decision to do away with the carry forward rule. The respondents have contended that the examination is not competitive but only qualifying. This renders the requirement of attempting the examination every year meaningless. It is ultimately stated that it is rather unfortunate that respondents have made contentions contrary to their own statements and this would only mean that there is a death of reason and logic to support the impugned action this would be writ large in the statement made in para 9 of the counter- affidavit that all the directly appointed ASI(M) will continue to appear in the SI(M) departmental examination till whole lot of ASI (M) are exhausted. This runs contrary to the earlier contention that there would be a restriction of five chances.
In W.P.M.P.No. 9494 of 2009, this Court by its order dated 23.10.2009, while listing the Writ Petition to be 19 posted for final hearing, directed the respondents to keep two vacancies of the Sub-Inspector (Ministerial) unfilled in case vase vacancies are available as on that day.
5. Learned counsel for petitioners Sri Siva submits that modification was carried out by an incompetent authority and thus, it suffers from lack of inherent jurisdiction. Modification has to be done only by the 1st respondent. It is submitted that persons who have qualified in the examination are so dismal that percentage of vacancies earmarked for that stream itself is not being filled-up, in those circumstances, there is no meaningful purpose in not considering petitioners for being promoted against the quota meant for them. According to the learned counsel, the main object of conducting departmental examination is to give a chance to efficient, talented and meritorious personnel to come forward in the service through fast track promotion to strengthen the efficiency of the Force. Since the Departmental Promotion Committee has not yet recommended the candidature of the persons zeroed down as to fall within the zone of consideration and promotions having not been effected, the balance of convenience would lie very heavily in favour of petitioners. As per Rule 55, 61 and 62 of the Central Reserve Police Rules, 1955, promotions shall be 20 made on merit, but by virtue of the action of respondents, meritorious candidates were not given promotions and only seniors were given promotions irrespective of their merit in the departmental examination. It is further submitted that the issue of doing away with the carrying forward of the list of candidates of those who cleared the examination was agitated before the Hon'ble High Court of Kerala and while the matter is pending adjudication, the respondents have amended the same in 2012 restoring the principle of carrying forward the list of candidates who have cleared the written examination. Thus, the fact that the respondents amendment was untenable was accepted by them and it is only during the examination held in 2007 the untenable rule was operated as the amendment of 2012 was given only prospectively, on this count, a direction that petitioners be promoted was liable to be given. Learned counsel submits that during the pendency of the Writ Petition, the 1st petitioner tendered technical resignation to report as a Junior Accountant in BSN and the 2nd petitioner has been promoted ion his own turn against the 70% seniority quota. In view of the fact that the manner of holding and promoting the ASI against the 25% quota itself is legally untenable, a direction that the respondents prepare a merit list based on the marks 21 secured in the written test held on 15.12.2007 be prepared and promoted the petitioners as Sub-Inspector (Ministerial) with all benefits. Alternatively, direct the respondents to treat the petitioners to have been promoted on and from the date o which the person were promoted in 2008 pursuant to the selection process. According to the learned counsel, in view of the interim direction of this Court, it has been submitted by the learned Standing Counsel during final hearing on 28.08.2023 that such a direction would in no way disturb those who have already been promoted pursuant to the selections which is subject matter of this Writ Petition.
6. Learned Standing Counsel submits that this examination is not a competitive examination but it is a qualifying examination; as per instructions laid down in para 9.11, 25% vacancies is to be filled by selection through departmental examination, as such the senior most qualified ASIs (M) were considered for promotion with reference to vacancies of SI(M) in following vacancy year by the DPC, thus, considering the cases of promotion in respect of qualified ASI(M) on the basis of inter-se seniority is well within the instructions on the subject.
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7. Heard the rival contentions in detail and perused the material on record.
8. The said amendment rules have not been produced either by the petitioners or by the respondents. The respondents admit that the said amendment was made by the Directorate of the Central Reserve Police Force. In any event, it is admitted that amendment was not made by the Central Government. Admittedly, Ext.R1(i) rules were framed by the Government of India in exercise of the powers under Section 18 of the 1949 Act. The rule-making power is exclusively vested with the Central Government. Therefore, respondents 1 to 3 have no manner of power to amend the rules framed by the Central Government. Admittedly, Ext.R1(i) Rules have not been amended by the Central Government and therefore, the so- called amendment has no legal validity. By the same coin, petitioners cannot also rely on any rule or executive instruction, which permits carrying forward of the list of successful candidates for vacancies which may arise next year, in so far as such a provision is not there in the Rules. Even apart from that, the Rules do not contemplate promoting persons, who have passed the departmental examination, in accordance with the seniority, without reference to the marks obtained by the 23 candidates in departmental examination so conducted going by the rule, the rule contemplates selection through a departmental examination. The method of recruitment is not seniority-cum-merit selection only. When the method of recruitment is by a selection through departmental examination, what Respondents 1 to 3 are expected to do is to draw up a rank list of candidates, who passed the examination in accordance with the marks obtained by them and to promote the most meritorious among them to the vacancies available for that year. The Rule does not contemplate anything other than that. Therefore, this Court is of the opinion that the procedure adopted by the respondents and the contention of petitioners that names of successful candidates would have to be carried forward to the next year's vacancies, both are against the recruitment Rules, but, at the same time, selection has to be strictly on the basis of the merit of the candidates, who passed the examination.
9. However, in view of the fact that there has been an interim direction by this Court to keep two posts reserved, pending disposal of the Writ Petition and since learned Standing Counsel during the final hearing on 28.08.2023 submitted that such a direction would, in no way, disturb those who have 24 already been promoted pursuant to the selections, which is a subject matter of this Writ Petition, this Court is of the view that Petitioners shall be promoted to the post of Sub-Inspector (Ministerial) against the 25% quota by selection by a departmental examination, if they are otherwise found suitable. It is needless to say that benefits including seniority and monetary shall flow from out of the same.
10. The Writ Petition is accordingly, allowed. No costs.
11. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 22nd November 2023 ksld