Gujarat High Court
Bhartendu Narmadashankar Rajgor ... vs State Of Gujarat on 16 February, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/19714/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 19714 of 2015
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BHARTENDU NARMADASHANKAR RAJGOR (GENERAL) &
4....Petitioner(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR GUNVANT R THAKAR, ADVOCATE for the Petitioner(s) No. 1 - 5
MR. ANTANI, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/02/2016
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the petitioners, serving as Deputy Mamlatdars in the different districts, have prayed for the following reliefs;
"(a) allow this petition with costs;
(b) quash and set aside the communication dated 23/10/2015 issued by respondent-Revenue Department forthwith; and/or (c ) direct respondent to give option for district selection to the petitioners who are already in select list as the same benefit is given to the wait listed candidates and selected candidates from Advertisement No.94/2011-12 for total 164 posts of Dy. Mamlatdars;
and/or
(d) direct respondent to give appointment as per the district selection re-shuffling the present place of Page 1 of 15 HC-NIC Page 1 of 15 Created On Sat Feb 20 00:58:34 IST 2016 C/SCA/19714/2015 ORDER appointment of the petitioners; and/or
(e) direct the respondent-Revenue Department to issue orders giving option for district selection to the petitioners who are in select list and to give them posting as Dy. Mamlatdar considering their option of district and to relieve them forthwith from the place they are working as Dy. Mamlatdar at present; and /or
(f) pending admission and final disposal of this petition, direct the respondent-Revenue Department to issue orders giving option for district selection to the petitioners who are in select list and to give them posting as Dy. Mamlatrdar considering their option of district and to relieve them forthwith from the place they are working as Dy. Mamlatdar at present; and /or
(g) grant any other relief in the nature of interim relief or pass any other order in the nature of interim order which the Hon'ble Court may consider as just and proper in the facts and circumstances of the case."
2. The case of the writ petitioners may be summarized as under;
2.1 The petitioners, pursuant to an advertisement issued by the respondent dated 28.01.2011 for recruitment on the post of Deputy Mamlatdar, applied for the same Online. They successfully cleared the Combined Competitive Examination on 25.5.2012 for the advertised posts. The details of each of the petitioners before me are as under;
"(1) Petitioner No.1- Bhartendu Narmadashankar Rajgor (General) is shown at Sr. No.530, working as Dy.
Mamlatdar, office of the Secretary Revenue (Appeal), Ahmedabad on deputation from 19/02/2015, originally appointed as Dy. Mamlatdar in Dist. Amreli.
(2) Petitioner No.2- Joshi Hardikkumar Sanjaykumar (General) is shown at Sr. No.506, working as Dy.
Page 2 of 15HC-NIC Page 2 of 15 Created On Sat Feb 20 00:58:34 IST 2016 C/SCA/19714/2015 ORDER Mamlatdar, office of the Mamlatdar, Garbada, Taluka- Garbada, Dist. Dahod.
(3) Petitioner No.3- Devang Rameshkumar Mevani (S.C.) is shown at Sr. No.469, working as Dy. Mamlatdar (Revenue), office of the Mamlatdar, Khanpur (Bakor), Dist. Mahisagar.
(4) Petitioner No.4- Alpesh Pratapbhai Parmar (S.T.) is shown at Sr. No.939, working as Dy. Mamlatdar, office of the Collector, Bharuch.
(5) Petitioner No.5- Ritesh Rupeshkumar Amin (S.C.) is shown at Sr. No.625, working as Dy. Mamlatdar, office of the Collector, Bharuch."
2.2 After being appointed as the Deputy Mamlatdars, they preferred a writ application being Special Civil Application No.5076 of 2015 raising the dispute as regards the grant of option to them for the district selection. This Court, vide order dated 23rd July, 2015, disposed of the said special civil application referred to above observing as under;
"1. By this application under Article 226 of the Constitution of India, the petitioners appointed as Deputy Mamlatdars, have prayed for the following reliefs;
"(a) allow this petition with costs;
(b) direct respondent no.1 to give option for district selection to the petitioners who are already in select list as the same benefit is given to the wait listed candidates;
and/or (c ) direct respondent no.1 to give appointment as per the district selection reshuffling the present place of appointment of the petitioners; and /or
(d) pending admission and final hearing of this petition, direct the respondent no.1 to give option for district selection to the petitioners who are already in select list as the same benefit is given to the wait listed candidates;
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(e) grant any other relief in the nature of interim relief or pass any other order in the nature of interim order which the Hon'ble Court may consider as just and proper in the facts and circumstances of the case."
2. By passage of time, the controversy has been taken care of quite substantially. It is the case of the petitioners that they should have been given the option of district selection. The same was not given by the State Government. It appears that, thereafter, the State Government considered the case of the petitioners and out of 47 petitioners before me, 41 were given the option of selection of districts. Therefore, now only six petitioners have been left out. In the affidavit-in-reply filed on behalf of the respondent No.1, the following averments have been made in paras 8, 9 and 10.
"8. I say and submit that with reference to the representation dt. 11-02-2015 and 19-02-2015 made by some petitioners, the Government decided to hold a reshuffling camp for the directly recruited Dy. Mamlatdar in the year 2012. Subsequently options for districts transfer were invited from the directly recruited Dy. Mamlatdar of the year 2012, through their collector offices. After receiving option for district transfer from all the collector offices, a transfer camp was organized by Revenue Department on 17-04-2015. Out of about 600 directly recruited Dy. Mamlatdars in the year 2012, 272 Dy. Mamlatdars participated in the transfer camp, out of which orders for district transfers of 146 directly recruited Dy. Mamlatdars were issued as per options given by them and on merit basis, keeping in view filled up and vacant posts in each district, vide Revenue Department orders dt 17-04-2015. Copies of Revenue Department orders dt. 17-04-2015 are annexed herewith and marked as Anneure R-I.
9. I say and submit that out of total 146 directly recruited Dy. Mamlatdars of the year 2012 transferred in the transfer camp held on 17-04-2015, 41 petitioners have been transferred as per option given by them on merit basis. Thus out of 47 petitioners 41 petitioners have been transferred as per option given by them for Page 4 of 15 HC-NIC Page 4 of 15 Created On Sat Feb 20 00:58:34 IST 2016 C/SCA/19714/2015 ORDER district transfer on merit basis. A copy of statement showing the details of 41 petitioners transferred is annexed herewith and marked as Annexure AR-II.
10. It is respectfully submitted that each and every directly recruited Dy. Mamlatdar of the year 2012 cannot be transferred as per his choice of district. Because filled up and vacant posts in the relevant district are to be taken in account and a balance of filled up posts in all districts is to be maintained before transfer, so that the public may not have hardship due to vacant posts in some districts."
3. The petitioners have filed affidavit-in-rejoinder stating in paras 6 and 7 as under;
"6. It is respectfully submitted that what is stated in para-10 of the reply cannot be accepted considering the G.R. Dated 02/02/2015 issued by respondent no.1- Revenue Department (Annexure-F- page no.68 to 73 to the petition) by which State Govt. has operated waiting list for the post of Deputy Mamlatdar with reference to advertisement no.20/2010-11 issued by GPSC and result for the posts mentioned in the said advertisement was published by the GPSC on 25/05/2012. In the said Resolution State Govt. has specifically mentioned that district option is given to wait listed candidates and the same benefit of district option was not given to the petitioners herein who are / were in the select list of the said advertisement. This is the clear case of discriminating and as on today petitioner no.8-Bhartendu Narmadashankar Rajgor- Sr. No.530, petitioner no.25- Joshi Hadikkumar Madhusudan Parmar- Sr. No.409, petitioner no.32-Devang Rameshkumar Mevani- Sr. No.469, petitioner no.33-Alpesh Pratapbhai Parmar- Sr. No.939 and pettiioner no.34-Ritesh Rupeshkumar Amin- Sr. No.625 haven not been given benefit of district option by the respondent no.1-Revenue Department though they are in merit list/ select list and candidates who are in waiting list have been given benefit of district option while giving appointment as Deputy Mamlatdar.
7. It is respectfully submitted that as per the information with the petitioners, State Govt.-respondent Page 5 of 15 HC-NIC Page 5 of 15 Created On Sat Feb 20 00:58:34 IST 2016 C/SCA/19714/2015 ORDER no.1-Revenue Department has issued office order no.MKM/102015/1478/N dated 25/05/2015 giving appointment to the candidates directly selected to the post of Deputy Mamlatdar with reference to advertisement no.94/201-12 for total posts of 164 giving district option to the selected candidates. This is the second incident where State Govt. has given district option to the candidates who are in subsequent select list whereas present petitioners who are in merit list of advertisement no.20/2010-11 are not given district option while giving appointment. So, it cannot be accepted that for petitioners no posts are available with the State Govt. to offer them district option."
4. Mr. Thaker, the learned advocate appearing for the petitioners, submitted that the stance of the State Government so far as the six petitioners who have been left out is concerned, does not appear to be reasonable because while operating the second select list, the option for selection was given to those candidates. According to him, his clients were appointed prior in point of time and they should have been given the priority.
5. Having regard to the controversy involved which is now in a very narrow compass, the respondent No.1 shall look into the case of the six petitioners who have been left out and if the fresh recruits have been given the option of district selection, then Government should reconsider its decision of giving option to the six petitioners so far as district selection is concerned. The respondent No.1 shall look into this matter and take an appropriate decision within a period of four weeks from the date of the receipt of the writ of the order.
6. With the above observations and directions, this petition is disposed of. Direct service is permitted."
2.3 It appears that after the order was passed issuing directions referred to above, the case of the petitioners was considered so far as exercising their option of district selection is concerned, and the same has been turned down. Being dissatisfied, the petitioners have come up with this writ Page 6 of 15 HC-NIC Page 6 of 15 Created On Sat Feb 20 00:58:34 IST 2016 C/SCA/19714/2015 ORDER application.
3. Mr. Antani, the learned AGP appearing for the State- respondent, invited my attention to the following averments made in the affidavit-in-reply filed on behalf of the State Government, duly affirmed by Shri D.G.Pandya, Under Secretary, Revenue Department.
"3. It is submitted that the petitioners applied for posts of Dy. Mamlatdar/Dy. Section Officer advertised by the Gujarat Public Service Commission in 2011. Recruitment process for direct selection was held in which the petitioners participated. The petitioners were meritorious in the select list. Apart from the select list comprising of successful candidates a wait list also came to be formulated. Petitioners being in the select list came to be appointed on the post of Dy. Mamlatdar in the year 2012. The petitioners have been functioning as Dy. Mamlatdar at various places since their respective appointments. Petitioners in the course of their pleadings have claimed that they were made known of wait listed candidates being offered appointment as also an option of District Selection at the time of their appointment by the State Government. Since an option of district selection was made available to wait listed candidates who were posted subsequently in the year 2015, the petitioners who were not opportuned to exercise an option of district selection felt discriminated. Representations were preferred by the petitioners and their likes requesting the State Government to offer them an option of district selection as was made available to the wait listed candidates. The State Government acceded to such request and held a transfer camp for all the Dy. Mamlatdar comprised in the select list and appointed in the year 2012, on 17.4.2015. Out of about 600 directly recruited Dy. Mamlatdars, 272 participated in the transfer camp organized on 17.4.2015.
4. It is submitted that while the option of district selection was given to the selected Dy. Mamlatdars, the options of districts where thrown open before the participants of the camp dated 17.4.2015 in a definite order. The State Government had inter alia resolved a Page 7 of 15 HC-NIC Page 7 of 15 Created On Sat Feb 20 00:58:34 IST 2016 C/SCA/19714/2015 ORDER priority order to be followed at the time of granting the options for district selection to the participants of the camp dated 17.4.2015. It was decided that, first priority was to be given to the newly formed seven districts viz. Arvalli, Botad, Chhota Udepur, Gir Somnath, Mahisagar, Devbhoomi Dwarka and Morbi naturally on account of their high incumbency rate, second priority was granted to districts viz. Amreli, Surendranagar, Porbandar, Dahod, Panchmahal, Navsari, Tapi and Dang. Since there were ample vacancies in the said districts and Lastly from the remaining district within the State of Gujarat two posts of each were to be offered for selection. It may be observed that the objective for this order of priority was to ensure that the filled up and vacant post in each district is afforded due importance and a balance is maintained.
It is submitted that in the aforesaid order of priority the various districts were made available to the participants for selection on the basis of their merit number. It is to be clarified that though the offer was to be made available on the basis of merit number, preference at the time of affording choice of districts was to be given to (1) handicaps and widow (2) candidates seeking mutual district transfers; and (3) candidates having serious medical ground. It needs to be submitted that this inter se preference while observing order of seniority was inter alia while bearing in mind suitable sorting of districts and administrative convenience.
The above arrangement was followed for affording the district selection to the numerous participants of the camp dated 17.4.2015. The petitioners had participated in the camp but did not avail their desired district owing to the definite order of priority and preference which was to be followed. A copy of the list of participants appearing in the camp dated 17.4.2015 depicting petitioners presence is annexed hereto and marked as ANNEXURE-R-
1.
5. It is submitted that non-availability of option of district selection aggrieved the petitioners who meanwhile had approached this Hon'ble Court vide Special Civil Application No.5076 of 2015. The said petition came to be allowed vide order dated 23.7.2015 directing the answering respondent to look into the case of the petitioners.
Page 8 of 15HC-NIC Page 8 of 15 Created On Sat Feb 20 00:58:34 IST 2016 C/SCA/19714/2015 ORDER The petitioners pursuant to the aforesaid order dated 23.7.2015 represented before the authorities seeking its implementation while citing their choice for district selection vide representation dated 7 to 13.10.2015.
At this juncture, it needs to be known that while implementing the directions of the Hon'ble High Court it was imperative that the respondent authorities were to afford the petitioners with the same treatment as was given to the participants of the transfer camp held on 17.4.2015. Meaning thereby the case of the petitioners for the purpose of affording them the option of district selection was to be considered in the mode and manner (priority order and preference as explained above) in which the cases of the participants of the camp dated 17.4.2015 was considered. At the same time the answering respondent was to also consider the fact that the district selection was now effected qua all the participants of the camp dated 17.4.2015 and transfer orders were also issued likewise with the participants also resuming their respective posts- a position which was never intended by this Hon'ble Court to be unsettled.
Taking into consideration their merit number and the priority order which was followed for balancing filled up and vacant post in each district, it was deemed by the answering respondent that the case of the petitioners more particularly the districts cited by them could not be given to them. Resultantly, the impugned communication came to be issued which is impugned in the present petition.
6. It is submitted and required to be clarified that the impugned communication was well founded and was not a mere cryptic denial. A list depicting particulars of district cited by the petitioners and factors taken into consideration while assessing the case of the petitioners is annexed hereto and marked as ANNEXURE-RII. A perusal of the said list of particulars would reveal that the petitioners could not be given their preferred districts firstly since the districts chosen by the petitioners were having an incumbency rate as low as 30%. As against that several district were having a higher incumbency rate where the petitioners ought to be accommodated for maintaining the incumbency ratio which was infact the Page 9 of 15 HC-NIC Page 9 of 15 Created On Sat Feb 20 00:58:34 IST 2016 C/SCA/19714/2015 ORDER primary objective while affording district selection at the camp dated 17.4.2015. Secondly, their merit number was observed while assessing their case which was the order of preference to be adapted since the same was observed for participants of the camp dated 17.4.2015. On account of such factors the case of the petitioners was assessed and deemed unfit for consideration. As a matter of fact it would arise that there has been no unreasonable or an out of turn allotment in the districts which have been chosen by the petitioners. The last allocation to the chosen districts had a much higher merit than the petitioners, only exception to which were handicapped and having serious medical ground candidates who naturally were to be given priority as resolved by the State Government even at the time of camp dated 17.4.2015 and who could not be disturbed from their posting which was already allocated to them. As already stated since most of the Districts sought for by the petitioners had a low incumbency rate of 30% no further allocation was to be made therein. Bearing in mind such factors the petitioners have been denied their choice of district which is a reasonably sound decision and cannot be faulted with.
Even otherwise it needs to be specified that the petitioners cannot claim as a matter of right a particular district. Choice of district for posting is not an incidence of the service they had accepted. Moreover, such exercise of affording a choice of district to the candidates was unique in the sence that it was a one time measure. The petitioners cannot persist with their choice merely because no allocation as per their choice could be made. The answering respondent has to take into consideration a variety of factors, interest of administration and policy being primal. While it was resolved by the State Government to effect the exercise of district selection in a definite order of priority and preference with a specific objective, such resolve necessity is to be attained. In the course of attainment of such resolve, if the petitioners fail in securing the district of their choice, they do not become entitled to allege / attribute arbitariness to the exercise of State Government. It also needs to be borne in mind that breaching the objective, order of priority and preference as was observed at the camp dated 17.4.2015, would have large scale repercussions in as much as it would aggrieve the other participants who Page 10 of 15 HC-NIC Page 10 of 15 Created On Sat Feb 20 00:58:34 IST 2016 C/SCA/19714/2015 ORDER already have been allocated their respective districts. Moreover the decision impugned if interfered with would violate Article 14 of the Constitution of India for the simple reason that acceding to the request of the petitioners would carve an exception for them to the criteria followed in the camp dated 17.4.2015 which were effected upon the participants therein who were similarly situated to the petitioners. Moreover it also needs to be considered that allocations of districts have already been made by now in strict compliance of the definite order and preference pre determined by the State Government for the purpose of District Selection which cannot be unsettled only to protect the invidious interest of the petitioners which even otherwise is not their right. As such, so was also not directed by this Hon'ble Court in its order dated 23.7.2015."
4. Mr. Antani, the learned AGP, laid much stress on the fact that each of the writ petitioners herein were asked to remain present on 17th April, 2015 for the purpose of exercising option for district selection. However, on that date, the State Government thought fit to permit the petitioners herein first to exercise their option with respect to the following districts;
"(i)Arvalli
(ii) Botad
(iii)Chhota Udepur
(iv)Gir Somnath
(v) Mahisagar
(vi) Devbhoomi Dwarka
(vii) Morbi.
5. The second in line so far as priority is concerned was with respect to the districts viz. Amreli, Surendranagar, Porbandar, Dahod, Panchmahal, Navsari, Tapi and Dang.
6. It appears that none of the districts referred to above were convenient to the petitioners. The last priority was given to the remaining districts within the State of Gujarat, but was restricted only to two posts.
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7. It is not in dispute that on 17th April, 2015, the petitioners herein did not exercise any of the options because none of the districts were convenient to them except Ahmedabad and Gandhinagar. I fail to understand the policy of the State Government. Once a person is appointed to a particular post, why should he be given an option so far as the place of work is concerned. He has to work wherever he is posted being a Government Servant. Be that as it may, if it is the policy of the State Government, then at least this Court expects the Government to be consistent in applying such policy. The reason I am saying so is that the State Government has no answer to the contention raised on behalf of the petitioners that the wait listed candidates, about 63 in numbers, were permitted to exercise their option of district selection, but the very same option was not given to the petitioners except few restricted districts. At page-10 of this petition, the petitioners have pleaded as under;
"(b) The petitioners respectfully submit that the said benefit is already offered by respondent to the wait listed candidates while operating waiting list vide resolution dated 02.02.2015 and given appointment to the post of Deputy Mamlatdar whereas the said benefit is denied by the respondent vide communication dated 23.10.2015 (Annexure-A) to the selected candidates. This is clear case of breach of Article 14 and 16 of the Constitution of India.
(c ) The petitioners respectfully submit that it is not open for respondent to give option for district selection to the wait listed candidates when such option is not given to the selected candidates as per the information provided under RTI as mentioned in the facts above.
(d) The petitioners respectfully submit that State Govt. cannot apply pick and choose method by giving option Page 12 of 15 HC-NIC Page 12 of 15 Created On Sat Feb 20 00:58:34 IST 2016 C/SCA/19714/2015 ORDER for district selection to the wait listed candidates ignoring the claim of the meritorious selected candidates.
(e) The petitioners respectfully submit that State Govt.- Revenue Department cannot ignore or flout the oral orders dated 25.7.2015 and 26.8.2015 passed by this Hon'ble Court in SCA No.5076 of 2015 and in para-2 to 5 the Hon'ble Court has specifically observed and directed the respondent that respondent shall look into the matter and take an appropriate decision within a period of four weeks from the date of the receipt of the writ of the order. While passing order dated 23.10.2015 respondent has totally ignore the merit of the petitioners who are in select list dated 25.5.2012 and it is undisputed fact that respondent-State Govt. has operated waiting list giving district option to the wait listed candidates and thereafter, also operated another select list prepared by GPSC in response to Advertisement No.94/2011-12 for total 164 posts of Dy. Mamlatdar by giving district option to the selected candidates. This is clear case of discrimination created for giving district option amongst the selected candidates, waist listed candidates and candidates who are further selected by GPSC in response to Advertisement No.94/2011-12 for total 164 posts of Dy. Mamlatdars.
(f) The petitioners respectfully submit that it is well settled law that similarly situated persons / employees are required to be treated similarly and different treatment cannot be given. On this ground petitioners are relying upon the judgment delivered by the Hon'ble Supreme Court of India in the case of K.T. Veerappa Vs. State of Karnataka reported in 2006 (9) SCC 406 and in para-16 it is observed as under:
"16. The defence of the State Government that as the appellants were not the petitioners in the writ petition filed by 23 employees of the respondent-University to whom the benefit of revised pay scales was granted by the Court, the appellants are estopped from raising their claim of revised pay scales in the year 1992-94, is wholly unjustified, patently irrational, arbitrary and discriminatory. As noticed in the earlier part of this judgment, revised pay scales were given to those 23 employees in the year 1991 when the contempt proceedings were initiated against the Vice-Chancellor Page 13 of 15 HC-NIC Page 13 of 15 Created On Sat Feb 20 00:58:34 IST 2016 C/SCA/19714/2015 ORDER and the Registrar of the University of Mysore. The benefits having been given to 23 employees of the University in compliance with the decision dated 21.6.1989 recorded by the learned Single Judge in W. P. Nos.21487-21506/1982, it was expected that without resorting to any of the methods the other employees identically placed, including the appellants, would have been given the same benefits, which would have avoided not only unnecessary litigation but also the movement of files and papers which only waste public time."
It is further respectfully stated that this Hon'ble Court has also considered the above mentioned ratio and delivered judgment dated 24.3.2009 in the case of Vipulkumar Atmaram Parekh vs. State of Gujarat reported in 209 (5) GLR 3914 and it is observed in para-9 that : "9... The model employer is one who would not deny just claim of his employee and employees on any technical ground. Such model employer would not wait for any direction to be given to accept just claim of the employee / employees. It is further observed that once it is found that an employee similarly situated the benefits flowing from a judgment in a case of other similarly situated employee, it should not be given to other similarly situated employee and employee should not be driven to the Court for addressing just grievances."
8. Despite such specific pleadings and contentions raised, the same have not been dealt with in the affidavit-in-reply filed by the State-respondent referred to above. There is no plausible answer why a special privilege was conferred on the wait listed candidates in preference to the regular selected candidates.
9. In such circumstances referred to above, the respondent- State is directed to once again look into the matter, and take an appropriate decision in that regard within a period of four weeks from the date of receipt of the writ of the order. This Court has noticed that on account of such policies, the litigation has increased. If any policy of the State Government Page 14 of 15 HC-NIC Page 14 of 15 Created On Sat Feb 20 00:58:34 IST 2016 C/SCA/19714/2015 ORDER is not implemented or enforced consistently, it is bound to create heart burning amongst the employees. Rather, such policies should not be framed. Ordinarily, the Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India, should not comment anything so far as the policy of the State Government is concerned unless found to be absolutely arbitrary or unreasonable, but in the matters of this type, the Government should be careful while implementing the same.
10 With the above, this writ application is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 15 of 15 HC-NIC Page 15 of 15 Created On Sat Feb 20 00:58:34 IST 2016