Gujarat High Court
Dhandhala Bharatkumar Ranchodbhai vs State Of Gujarat on 6 July, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/22474/2017 ORDER DATED: 06/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22474 of 2017
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DHANDHALA BHARATKUMAR RANCHODBHAI
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR PA JADEJA(3726) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2,3,4
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 06/07/2021
ORAL ORDER
1.Heard learned advocate Mr. P.A. Jadeja for the petitioner and learned Assistant Government Pleader Mr. Jayneel Parikh for the respondent no.1.
2.Brief facts of the case are that pursuant to the advertisement dated 16th November, 2016 issued by respondent no.3 - Amreli District Panchayat Service Selection Committee, the petitioner applied for the post of Gram Sevak (Class-3) as the petitioner was possessing qualification of Diploma in Agriculture course from OPJS University, Churu. The petitioner appeared in the written examination and cleared the same and his name was there in the provisional merit list at Serial No.6. The petitioner was thereafter Page 1 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 called upon to remain present before respondent no.3 for verification of documents and credentials on 8th March, 2017. However, the name of the petitioner was not there in the Final List of selected candidates because he was not treated eligible on the ground that the Diploma course certificate that the petitioner possessed was from OPJS University Churu, in the State of Rajasthan.
3.Being aggrieved by such action of the respondents authorities, the petitioner has approached this Court by filing this petition.
4.At the outset, learned Assistant Government Pleader Mr. Jayneel Parikh submitted that the petitioner is not entitled to be considered for the post of Gram Sevak (Class-3) pursuant to advertisement dated 16th November, 2016 as the petitioner has passed three years Diploma in Agriculture course from OPJS University Churu. It was submitted that in the petitions filed by similarly situated persons as that of petitioner herein, this Court (Coram : Hon'ble Mr. Justice N.V. Anjaria) by order dated 23rd February, 2018 in Special Civil Application No.6887/2017 and other allied matters, have rejected such petitions by holding that the employer is the ultimate arbiter for judging the Page 2 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 qualification held by the candidate and the suitability or acceptability thereof for the purpose of giving appointment and when the respondents authorities came to the conclusion that the petitioners were not eligible for the post of Gram Sevak in question by treating the Diploma in Agriculture conferred by OPJS University to be not acceptable, there was no irrationality or infirmity in such decision. It was submitted that Letters Patent Appeal No.349/2018 and other allied matters filed by the similarly situated persons were also dismissed by the Division Bench of this Court (Coram : Hon'ble Mr. Justice Anant S. Dave [As His Lordship was then] and Hon'ble Mr. Justice Biren Vaishnav) vide order dated 11th May, 2018 confirming and upholding the judgment and order of the learned Single Judge. It was therefore, submitted that similar order be passed in this case also.
5.On the other hand, learned advocate Mr. P.A. Jadeja appearing for the petitioner could not controvert the above submission made by learned Assistant Government Pleader.
6.In view of above, it would be fruitful to refer to the order passed by this Court dated 23rd February, 2018 in Special Civil Application No.6887/2017 and allied matters Page 3 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 which is as under :
"5. Figures on the record a communication dated 07th December, 2013 addressed by the University Grants Commission (UGC) to the Vice Chancellor of the OPJS University, which is in relation to the establishment of the OPJS University as a private university, and it throws light on certain important and material aspects having bearing on the controversy. The UGC explicitly stated that inclusion of the name of the university in the list of university maintained by it did not by itself permit such university to grant admissions in its various programmes. Importantly, it was stated by UGC further that the admissions to the academic programmes may be done by the universities/ institutions only after creation of the required academic infrastructure and physical requirements including provision of library, laboratory as well as appointment of teaching and non-teaching staff in consonance with the norms and standards laid down by the UGC or other statutory regulatory authorities.
5.1 It was further stated by the UGC in respect of the OPJS University that an committee would be constituted by the UGC to ascertain whether the OPJS University fulfilled criteria in terms of the academic programmes, recruitment of faculties, availability of infrastructural facilities as well as the financial viability. It was stated that these aspects would be examined by the expert committee with reference to the norms and rules laid down by statutory bodies like UGC, AICTE, BCI, MCI, NCTE, PCI, etc. As stated, the expert committee of the UGCL would visit the university within three months for on-the-spot assessment and would prepare a report in that regard, whereafter the final decision would be taken by the UGC and the university may be asked to comply with the deficiency. Noticeable was the Page 4 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 contents of status report about inspection to be carried out by the expert committee of the UGC in which the details were mentioned and remarks were made against different universities and colleges. The remark against the OPJS University was that the information was asked for, for the purpose of inspection, however they were awaited.
5.2 In light of the above aspects highlighted in the communication of the UGC, the doubts entertained by the respondents and consequential refusal to accept the degree could hardly be said to be unreasonable. The contents of the said letter offered answers to the arguments of the petitioners whose contention was that once the university was established, it could confer any degree or diploma.
6. In Chaudhary Kuldeep Pravinkumar v. Ahmedabad Municipal Corporation being Special Civil Application No.231 of 2013 and allied petitions decided on 22nd December, 2014, the petitioners were disallowed to resume duties on the post of Multi Purpose Health Worker or Sanitary Inspector on the ground that they possess their diploma from one Manav Bharti University Salon, an outside State university in Himachal Pradesh. The case of the petitioners was that the said diploma course was recognised by the University Grants Commission and since the Manav Bharti University was constituted under the statute, the degree or diploma granted by such University ought to have been accepted and could not have been questioned and it was contended that in view of Circular dated 23rd October, 2009 of the Family Welfare Department, once the diploma was conferred by the University recognised by the University Grants Commission, such diploma would be accepted.
6.1 It was the contention that the advertisement mentioned the only eligibility of possessing the diploma from a recognised Page 5 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 University and since the petitioners were holders of the diploma from a recognised University, they satisfied the eligibility requirement. In those petitions another limb of controversy was about genuineness of the mark-sheets produced by the candidates concerned. The Court examined the issue whether the authorities were justified in not accepting the diploma offered by the said Manav Bharti University so as not to recognise the qualification from the said University for the purpose of appointment on the post of Multi Purpose Health Worker.
6.1.1 The Court observed referring to the contentions, "The background of the facts, which have been referred to, has two aspects. The contention is sought to be raised by learned advocate for the petitioners that any degree diploma granted by any University, which is recognized in respective State or the UGC cannot be questioned and it has to be accepted as a valid degree diploma for the purpose of the appointment by the organization like the respondent-Municipal Corporation. However for that purpose, the genuineness of the marksheet produced by the candidate is one aspect. ... ... ... However assuming that the candidates have produced the mark-sheet issued by the respective University like in the present case, Manav Bharti University, which is established under the statute of the respective State, can the employer like the respondent-Corporation refuse the acceptance of such diploma for the purpose of appointment in question. Thus it has a reference to the aspect of training of the candidate and suitability of the candidate for the post in question." (Para 11) 6.1.2 The Court held, "... ... ... when the candidates like the petitioners are applying for the post, the employer like the respondent-Corporation may have a right to assess the suitability or the qualification on the basis of diploma or the mark-sheet or Page 6 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 any other document produced. The respondent- Corporation is within the rights to assess and examine whether the candidates, who claim the appointment, are suitable, having qualification, having necessary training and eligibility for the post in question. Again this could be decided with reference to not merely the certificate or diploma certificate but the courses or the training, which he has undergone which in turn will require some kind of verification with reference to the curriculum, number of subjects, duration of courses and also manner in which the diploma is imparted after training by the respondent-Institute or the University." (Para 11) 6.1.3 The Court further stated, ".... ... ... It is required to be noted that if the candidate is selected based on such diploma without reference to any qualification or training aspect and ultimately which he has to perform his duty, is not found trained for the job, would be against the public interest. The posts are meant to be filled by the respondent-Corporation as a civil body for service to the people in discharge of its obligation to provide as civil facilities and the services. Therefore, if the candidates, who are not properly trained or suitable are appointed, it would be a counter productive." (Para 11) 6.1.4 It was asserted by the Court that the respondent - Corporation was employer who was within its right to decide on the qualification to whether they can be accepted as valid qualification. The court stated that when the employer exercises its right to judge the suitability of the qualification, it would not amount to violation of Article 14 of the Constitution. It was viewed observing that it is not a matter of any discrimination or entitlement of getting the opportunity in employment in any public service. Rather it is a matter of adjudging the suitability and Page 7 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 qualification of the candidate before one is appointed.
6.1.5 The Court made further following pertinent observations that, the employer may insist upon that degree or diploma should be obtained from a particular recognised institution only and could also refuse the qualification which may have been obtained from other institutions whose status or recognition or the degree or diploma themselves could be questioned on legitimate considerations. "... ... ... It is well accepted that in many organizations, the organization like the respondent Corporation may have right to specify and insist for a kind of candidate possessing necessary qualification, for example, in some organization, they may have insisted that the candidates having degree diploma from the institutions like IIT or Regional Engineering College would be valid as accepted. Similarly, even for some organization, the candidates having passed Law degree with five years courses are recognized as valid. That does not mean that other candidates holding degree or diploma have without qualification but the employer may have right to select what type of candidates, they desire with and what type of qualification. Therefore, the person with a degree in Engineering from any other University or the college may have qualified Engineer for the post but the employer unfortunately may have right to say that they would accept only degree holder form IIT or Religional Engineering College as valid. Similarly a person with degree in law may be qualified as a law graduate but the Organization may restrict or may insiste that only person having qualified from the college imparting five years course would be a valid degree. Therefore, it cannot be said to be unreasonable discrimination and it is a classification sought to be made with the purpose sought to be achieved as reasonable integrea. Therefore, it does not affect any Page 8 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 right of person like the petitioners under Article 14 of the Constitution of India nor can be said that any opportunity has been denied. Again the persons like the petitioners are claiming right and it is equal right of the respondents to have freedom to select a proper and suitable candidate from the mark after making assessment about the suitability, qualification, training etc." (Para 11) 6.1.6 The Court further observed and stated thus, "... ... ... the reference is made to the provisions of the University Grant Commission Act and the recognition under the UGC is one thing. However as stated, there is no agency like Medical Council or Bar Council or AICTE for the purpose of approval of the degree diploma of the course undertaken in case of such courses like the Sanitary Inspector. It is also stated that under the University Grant Commission Act, for the purpose of running any course, permission is required. It would mean that the University or the Institution can undertake the cases awarding diploma without any fixed norms regarding curriculum, minimum standard of training and there may not be any kind of standard for the purpose of such degree diploma. In turn, the Court cannot be oblivious with the fact about the manner in which the courses are being conducted by the Institution particularly deemed University making it almost a commercial organization. ... ... ... If untrained students may be enrolled and without proper training, curriculum or necessary training, diploma could be awarded just to earn profits and such students when they can in the market, may either not be getting job or if they are permitted to get job on the basis of such qualification, it would be detrimental to the society, particularly, in the public employment, the appointment on any public based on any organization like the respondent-Corporation, which is public body, will lead to compromising the interest Page 9 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 of the society if it is permitted to get employment based on such degree diploma."
(Para 13) 6.2 While what is observed and held in Chaudhry Kuldeep Pravinkumar (supra) applies to the facts of the case so as to answer the contentions raised on behalf of the petitioners, the decision relied on by the petitioners in Pratikkumar Natvarbhai Barot (supra), was considered in Jigneshkumra Gopalbhai v. Municipal Commissioner being Special Civil Application No.7694 of 2013 and connected petitions decided on 27th January, 2016. The petitioners in that case had applied for the post of Multi-Purpose Health Workers who had obtained Diploma in Sanitary Inspectorship from Manav Bharti University, Salon which was an outside university similarly placed in terms of status to that of the OPJS University, Churu, Rajasthan. The Court relied on the aforementioned law laid down in Chaudhary Kuldeep Pravinkumar (supra). The decision in Chaudhary Kuldeep Pravinkumar (supra) in Special Civil Application No.231 of 2013 was carried in Letters Patent Appeal No.1002 of 2015. The Division Bench, by judgment dated 29th June, 2015, dismissed the Appeal. In the said confirming judgment also, the following statement of law could be clearly discerned, "It is ultimately for the Corporation to consider their (candidates') suitability".
6.3 In group of petitions in Monikaben Ghanshyambhai Patel v. State of Gujarat being Special Civil Application No.6953 of 2017 and allied matters decided by judgment of even date, the controversy and the issue involved was akin to one involved in this group. In those cases, the petitioners were seeking appointment to the post of Gram Sevak, who were holding the qualification of Degree of Bachelor in Rural Studies, however the subjects in which they had obtained the said degree were the Home Science subjects.
Page 10 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022C/SCA/22474/2017 ORDER DATED: 06/07/2021 They were treated to be not eligible for the post on the ground that they had obtained the degree in Home Science. The contention was negatived that since the Rule mentioned the Degree of Bachelor in Rural Studies without any specification, the petitioners could not have been discarded from the zone of consideration on the ground that subjects of their degree were different. In paragraph 5.5 of the said decision in Monikaben Ghanshyambhai Patel (supra), the following was observed which would apply in principle in the facts of the present cases also. "5.5 It has to be emphasised that relevance of study of subjects undergone could always be a criteria to be injected into the qualification for the post in question. The contents in curriculum forming part of the degree or diploma which is to be treated and accepted as educational qualification for the post in question, are germane considerations. In other words, the employer would be justified in examining the contents of the course to adjudge the eligibility and the suitability with reference to the post to which the appointment is to be made. The scrutiny of such nature could not be said to be impermissible by the employer."
6.4 In Chaudhary Kuldeep Pravinkumar (supra), the Court ruled in paragraph 15 which was quoted and relied on in Jigneshkumar Gopalbhai (supra) which answers the contention of the petitioners herein.
"The submission, which have been made referring to the provisions of the UGC Act read with Section 22 of the Act that the University or the Institution can award the degree diploma and there is no provisions under the UGC Act to specify any such courses as it is outside, the performance of the UGC is one aspect. However, the courses conducted and run by any University should be accepted or not has to be left to the discretion of the employer like the respondent-Corporation. It is required to be Page 11 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 mentioned that reference to the statutory authority like Medical Council or AICTE or Bar Council give a mere credence to the course run and conducted by the University or deemed University. Therefore, when there is no such nodal agency like Medical Council or AICTE to ascertain about the curriculum aspect of training, syllabus and duration of the course, which will have bearing on the ultimately training for the purpose of qualification of the candidate or student, who possesses diploma, there is no criteria or standardization. It is in this background, though the University may have power to conduct the course and award the diploma but whether it should be accepted even though it is valid for the purpose of their any requirement, is a matter of choice for the employer or the organization like the respondent-Corporation." (Para 15) 6.5 Significantly, Schedule II of the OPJS University, Churu Act, 2013 mentions disciplines in which the University shall undertaken the study and research. Out of 30 disciplines mentioned in the Schedule II, agriculture is not mentioned. A submission attempted was that discipline "Basic and Applied Science" read with discipline "Environmental Science" would cover the subjects of agriculture. All the more, the qualification of diploma granted by the OPJS University were highly doubtful in nature. It could be submitted that the course of Diploma in Agriculture was not shown on the website of the University. Nor it was clear that the said OPJS University had requisite infrastructure in terms of academic faculties and physical facilities. The status by the UGC shown that such information was awaited and the inspection was yet to be taken out. Merely because the name of OPJS University appeared in the list of universities/institutions, it would not compel the respondent employer to recognise and accept the diploma conferred by OPJS University. The respondent authorities were Page 12 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 within their right, and acted reasonably to exclude the petitioners on the ground that they had the diploma from OPJS University.
6.6 In light of the above discussion, it has to be held that the employer is the ultimate arbiter for judging the qualification held by the candidate and the suitability or acceptability thereof for the purpose of giving appointment. The employer could examine credentials of the universities/institutions from which the qualification concerned was obtained, and could also examine the credentials of the qualification itself in terms of the curriculum and the subjects included so as to match them with the requirement of the post. Therefore, when the respondents had undergone such exercise whereby they came to conclusion to treat the petitioners to be not eligible for the post of Gram Sevak in question by treating the Diploma in Agriculture conferred by the OPJS University to be not acceptable, there was no irrationality or infirmity in such decision. The petitioners could not seek enforcement of relief prayed for of giving appointment to the post.
7. For the foregoing reasons and discussion, no case is made out for granting relief as prayed for by the petitioners. All the petitions are meritless and they are hereby dismissed. Notice is discharged in each petitions. Interim relief stands vacated. There shall be no order as to costs."
7.The Division Bench by order dated 11th May, 2018 in Letters Patent Appeal No. 349/2018 and allied matters after considering in detail the submissions of the appellant as well as the respondent-State held as under :
Page 13 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022C/SCA/22474/2017 ORDER DATED: 06/07/2021 "22. Therefore, the admitted facts remain that OPJS University is no doubt recognized private University by the State of Rajasthan and established under the OPJS University, Churu Act, 2013 and further His Excellency Governor of Rajasthan accorded ascent to the Act on 15.9.2013 and, therefore, commencement of various courses were admittedly after first meeting of the academic year which was held on 7.10.2013.
It is also not in dispute that Schedule II of the OPJS Act 2013 in the list of subjects, Diploma in Agriculture was not mentioned. The Recruitment Rules of 2014 mandates educational qualification of either two years' or three years' Diploma in Agriculture and admittedly the appellants in this group of appeals are not holding such diploma in Agriculture but based on curriculum studied by them in the disciplines "Basic of Applied Sciences" as well as "Environmental Science Studies"
which cover subjects of Agriculture and allied subjects. inspite of repeated requests by a Committee constituted by the recruiting body no details were provided about boarding facilities given to the students in the hostel, food bill, practicals performed by the students and journals prepared by them even for disciplines other than Diploma in Agriculture. Only 50 admission form and identity cards of the students were given. Besides instances have appeared that candidates appearing for Gram Sevak having Diploma in various disciplines have simultaneously studied in other colleges or institutions and ultimately they had withdrawn the petitions.
23. That the contentions raised by learned counsel for the petitioners/appellants herein of this group that prior permission or approval of the UGC for Diploma Course was not necessary, in view of Section 3 (8) Page 14 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 of the Rajasthan Universities Act is of no relevance. That these mark-sheets were furnished by the petitioners of this category that they had undertaken three years' Diploma Course in Agriculture from OPJS University, but at the same time, it was not recognized by UGC, even inspection was also awaited of UGC as per web-site on 4.4.2017. When a detailed inquiry is made by the recruiting agency about genuineness of in-class studies of the candidate for which satisfactory material is not made for de- listing them from provisional merit list cannot be said to be arbitrary, unreasonable or discriminatory.
24. We can safely refer to paragraphs 4.8, 5, 5.1 and 5.2 of the judgment rendered by learned Single Judge and reproduced herein below:-
"4.8 On behalf of the respondent University Grants Commission, affidavit-in-reply filed in Special Civil Application No.6901 of 2017 mentioned inter alia that OPJS University, Rawatsar, Kunjila, Tehsil - Rajgarh, District Churu, Rajasthan, a private university under the State legislation of State of Rajasthan was governed under the UGC (Establishment and Maintenance of Standards in Private Universities) Regulations, 2003. The said university is empowered to award degrees through its main campus in regular mode with approval of statutory bodies and councils. It is further stated that by virtue of Notification dated 17th June, 2013 the regulatory functions in respect of Open Distance Learning Centers has now been controlled by UGC, and further that the university was not authorised to off- the-campus study centers beyond territorial jurisdiction of the State of Rajasthan where it is established. It was stated that the OPJS University Page 15 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 is neither granted any approval for conducting distance educational programmes or even to open off-campus study centers other than its main campus. It is finally stated by the UGC that, the said OPJS University of Rajasthan is not in the list of the approved university/institution recognized for distance education.
5. Figures on the record a communication dated 07th December, 2013 addressed by the University Grants Commission (UGC) to the Vice Chancellor of the OPJS University, which is in relation to the establishment of the OPJS University as a private university, and it throws light on certain important and material aspects having bearing on the controversy. The UGC explicitly stated that inclusion of the name of the university in the list of university maintained by it did not by itself permit such university to grant admissions in its various programmes. Importantly, it was stated by UGC further that the admissions to the academic programmes may be done by the universities/ institutions only after creation of the required academic infrastructure and physical requirements including provision of library, laboratory as well as appointment of teaching and non- teaching staff in consonance with the norms and standards laid down by the UGC or other statutory regulatory authorities.
5.1 It was further stated by the UGC in respect of the OPJS University that an committee would be constituted by the UGC to ascertain whether the OPJS University fulfilled criteria in terms of the academic programmes, recruitment of faculties, availability of infrastructural facilities as well as Page 16 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022 C/SCA/22474/2017 ORDER DATED: 06/07/2021 the financial viability. It was stated that these aspects would be examined by the expert committee with reference to the norms and rules laid down by statutory bodies like UGC, AICTE, BCI, MCI, NCTE, PCI, etc. As stated, the expert committee of the UGCL would visit the university within three months for on-the-spot assessment and would prepare a report in that regard, whereafter the final decision would be taken by the UGC and the university may be asked to comply with the deficiency. Noticeable was the contents of status report about inspection to be carried out by the expert committee of the UGC in which the details were mentioned and remarks were made against different universities and colleges. The remark against the OPJS University was that the information was asked for, for the purpose of inspection, however they were awaited.
5.2 In light of the above aspects highlighted in the communication of the UGC, the doubts entertained by the respondents and consequential refusal to accept the degree could hardly be said to be unreasonable. The contents of the said letter offered answers to the arguments of the petitioners whose contention was that once the university was established, it could confer any degree or diploma."
25. We are in agreement with aforesaid finding and, therefore, further discussion on the issue is not necessary. This group of appeals and other similar Letters Patent Appeals filed by the appellants represented by learned advocate Mr.Prithvi Jadeja, who adopted submissions of Mr.T.R.Mishra, therefore, do not require any repetition."
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8.In view of above, no interference is required to be made while exercising jurisdiction under Articles 226 and 227 of the Constitution of India as the facts of this case are identical.
9.Petition is accordingly disposed of. Notice is discharged.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 18 of 18 Downloaded on : Sat Jan 15 21:28:54 IST 2022