Gujarat High Court
Gujarat Water Supply & Sewerage Board vs State Of Gujarat Through Secretary on 26 March, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/394/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 394 of 2018
In SPECIAL CIVIL APPLICATION NO. 3174 of 2010
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GUJARAT WATER SUPPLY & SEWERAGE BOARD
Versus
STATE OF GUJARAT THROUGH SECRETARY
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Appearance:
MR VISHRUT JANI for RC JANI AND ASSOCIATE(6436) for the
PETITIONER(s) No. 1
MR DHAWAN JAYSWAL AGP for the RESPONDENT(s) No. 1
MR KB PUJARA(680) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 26/03/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. Heard Mr.Vishrut Jani, learned advocate for the appellant, Mr.Dhawan Jayswal, learned AGP for respondent No.1 and Mr.K.B.Pujara, learned advocate for respondent No.2. This appeal is taken up for final disposal with the consent of learned advocates for the parties.
2. The Apex Court considering the claim for compassionate appointment in the context of applicability of old scheme for compassionate appointment vis-a-vis newly substituted scheme for ex-gratia payment in the case of Canara Bank & Anr. vs. Mahesh Kumar reported in (2015) 7 SCC 412 held that claim of compassionate appointment under a scheme of a particular year cannot be Page 1 of 21 C/LPA/394/2018 ORDER decided based on subsequent scheme that came into force much after claim. In the above case, old scheme of the year 1993 for compassionate appointment was substituted by new scheme for ex-gratia payment for the year 2005 in the case of father of the claimant died on 10.10.1998 while serving as a Clerk in the appellant-Bank and also applied in time as per the scheme in the year 1993 and such an application was rejected on 30th June, 1999 on the ground of absence of indigent circumstances for providing employment to respondent. The Bank continued to ask for details mean while and upon raising various contentions by learned advocate for the appellant-Bank about object and nature of the very scheme for compassionate appointment "dying in harness scheme" as per circular of the Bank, the Apex Court had an occasion to scan all earlier decisions in this regard and particularly that of Umesh Kumar Nagpal vs. State of Haryana (1994) 4 SCC138. That paragraphs 8 to 16 of Canara Bank (supra) reads as under:
"8. Law with regard to employment on compassionate ground for dependant of a deceased employee is well settled. In Sushma Gosain & Ors. vs. Union of India & Ors., (1989) 4 SCC 468, this Court held as thus:
"9. We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of Page 2 of 21 C/LPA/394/2018 ORDER the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant."
9. The settled law which has been reiterated in various cases has been succinctly elucidated in MGB Gramin Bank vs. Chakrawarti Singh, (2014) 13 SCC 583, wherein it was observed that compassionate appointment cannot be granted as of right and the application to be decided as expeditiously as possible and held as under: "6. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its breadearner. Mere death of a government employee in harness does not entitle the family to claim compassionate employment. The competent authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that Page 3 of 21 C/LPA/394/2018 ORDER compassionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years." (emphasis supplied) The above consistent view has been reiterated in various judgments by this Court in Umesh Kumar Nagpal vs. State of Haryana & Ors. (1994) 4 SCC 138, State of Manipur vs. Md. Rajaodin, (2003) 7 SCC 511, Steel Authority of India Ltd. vs. Madhusudan Das & Ors., (2008) 15 SCC 560 and Sanjay Kumar vs. State of Bihar & Ors., (2000) 7 SCC 192.
10. Before adverting to the arguments of the learned counsel for the parties, it is necessary to examine the scope of the Scheme dated 8.05.1993 vide Circular No.154/1993 for "compassionate appointment". The object of the Scheme is to help dependants of employees of Canara Bank who die or become totally and permanently disabled while in harness and to overcome the immediate financial difficulties on account of sudden stoppage of the main source of income. The employment under the scheme will be considered only if there are indigent circumstances necessitating employment to one of the dependants and the deceased employee's service record is unblemished. Mere eligibility will not vest a right for claiming Page 4 of 21 C/LPA/394/2018 ORDER employment. As per para 3.1, application for employment should be sought within 2½ years from the date of death of the employees. In para 3.2, it is stated that in case of the dependant of the deceased employee to be offered appointment is a minor, the bank may keep the offer of appointment open till the minor attains the age of majority provided a request is made to the bank by the family of the deceased employee and the same may be considered subject to rules prevailing at the time of consideration.
11. During the pendency of the matter before the Division Bench, Indian Banks Association (for short 'IBA') formulated a scheme based on the guidelines issued by the Government of India. As per the said Scheme, the banks have scrapped the scheme of compassionate appointment and introduced the new scheme of exgratia payment in lieu of compassionate appointment by H.O. Circular No.35/2005 dated 14.02.2005. According to appellantBank, as on date of consideration of the application for compassionate appointment, there was no policy to provide compassionate appointment under 'Dying in Harness Scheme'. It is therefore the contention of the bank that the new scheme of 2005 applies to all pending applications for appointment on compassionate ground, respondent's case could not be considered and as per the new Scheme, they are only entitled to exgratia payment in lieu of compassionate appointment.
Page 5 of 21 C/LPA/394/2018 ORDER12. The main question falling for consideration is whether the Scheme passed in 2005 providing for exgratia payment or the Scheme then in vogue in 1993 providing for compassionate appointment is applicable to the respondent.
13. The appellantbank has placed reliance upon the judgment of this Court in Jaspal Kaur's case (supra) to contend that the respondent's case cannot be considered on the basis of 'Dying in Harness Scheme 1993' when the new Scheme of 2005 providing for exgratia payment had been put in place.
14. In Jaspal Kaur's case (supra), Sukhbir Inder Singh employee of State Bank of India, Record Assistant (Cash & Accounts) passed away on 1.08.1999. Widow of the employee applied for compassionate appointment in State Bank of India on 5.02.2000. On 7.01.2002, the competent authority of the bank rejected the application of Jaspal Kaur in view of the Scheme vis avis the financial position of the family. Against that decision of the competent authority, the respondent filed writ petition before the Punjab and Haryana High Court which has directed to consider the case of Jaspal Kaur by applying the Scheme formulated on 4.08.2005 when her application was made in the year 2000. In that factual matrix, this Court has directed that dispute arising in the year 2000 cannot be decided on the basis of a Scheme that was put in place much after the dispute.
Page 6 of 21 C/LPA/394/2018 ORDER15. By perusal of the judgment in Jaspal Kaur's case, it is apparent that the judgment specifically states that claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim.
16. The same principle was reiterated by this Court in the case of Bhawani Prasad Sonkar vs. Union of India & Ors., (2011) 4 SCC 209, wherein it was held as under : "15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right.
Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible.
Nevertheless, the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly Page 7 of 21 C/LPA/394/2018 ORDER construed and confined only to the purpose it seeks to achieve. ......
17. In Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138, while emphasising that a compassionate appointment cannot be claimed as a matter of course or in posts above Classes III and IV, this Court had observed that: (SCC p. 140, para 2) "2. ...The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in nonmanual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be Page 8 of 21 C/LPA/394/2018 ORDER achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the [pic]rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned." ........
20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:
(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.
(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be Page 9 of 21 C/LPA/394/2018 ORDER granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.
(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts."
(emphasis supplied)
3. In the backdrop of above declaration of old factual scenario which emerged on record and addressed by learned Single Judge, in para 3 and 4 of the impugned order reads as under:
"3. It is undisputed fact that father of the petitioner was given a job on 07.09.1982 because of acquisition of his land for the capital project. Therefore, petitioners father was in service of respondent as Junior Clerk till his death. It is also undisputed fact that during the tenure of his services i.e. before the age of superannuation, petitioners father had expired on 10.02.2005. Because of such sudden demise, the petitioner being son of the government employee has applied for compassionate appointment on 15.02.2005 i.e. just within 5 days of death of his father, which shows need of bread earner in the family of the petitioner. Petitioner was neither Page 10 of 21 C/LPA/394/2018 ORDER employed nor having some good earnings either on the date of his application which is just within 5 days of the death of his father or even thereafter. Therefore, by all means, what is to be considered is the position with reference to the petitioner and his family on the date of death of his father, so also law, rule and scheme applicable on that date.
4. Unfortunately, in addition to all other submissions, factually as well as relying upon certain Government Resolutions, it has been submitted by the respondent today that since more than 10 years have lapsed as on date and since petitioner was able to survive for all such 10 years, it is to be believed that petitioner is earning his livelihood and hence he is not entitled to compassionate appointment. However, petitioner has filed this petition in the year 2010 and, therefore, 6 years have been lapsed till date after filing this petition only to decide it by this Court. Thus, when this petition itself was pending before the highest Court of the State, for which litigant cannot be held responsible, because entire system has failed to decide such petition at the earliest. At the same time, it cannot be ignored that in fact, petitioner has already agitated the issue by filing similar petition being Special Civil Application No. 10153 of 2007 wherein the Co-ordinate bench of this Court has on 27.06.2007 passed following Page 11 of 21 C/LPA/394/2018 ORDER order;
1. Heard learned Advocate Mr. MS Joshi for petitioner and Mr. Patel, learned AGP for respondent State Authority.
2. Application made by the petitioner for appointment on compassionate ground has been rejected by the State Authority by order dated 1st June, 2006 page 10 only on the ground that the petitioner is not possessing the educational qualification of Matriculation as required under the Notification dated 16th March, 2005.
3. It is submitted by the learned Advocate Mr. Joshi before this court that the said decision is not correct and same is not based on the policy which was prevailing at the time of death of the father of the petitioner, on 10th February, 2005 as well as the date on which such application was made by the petitioner for appointment on compassionate ground. He submits that the case of the petitioner is required to be considered only as per the policy prevailing at the relevant point of time. In support of his submissions, reliance was placed by learned Advocate Mr. Joshi on the two decisions of the apex court as under:
(1) Abhishek Kumar Vs State of Haryana and others reported in 2006 (13) SCALE at page 658 (2) State Bank of India & Ors. Vs. Jaspal Kaur reported in JT 2007 (3) SC page 35.
4. I have considered the submissions made by learned Advocate Mr. Joshi for petitioner and the learned AGP Ms. Natani for the State authority.
5. In the matter of the Abhishek Kumar Vs State of Haryana and others reported in 2006 (13) SCALE at page 658, in para 5 the apex court has held as under:
Page 12 of 21 C/LPA/394/2018 ORDERAppellant herein had sought for appointment on compassionate grounds at a point of time when 2003 Rules were not in existence. His case, therefore, was required to be considered in terms of the Rules which were in existence in the year 2001. Evidently, in the State of Haryana a State wise list is maintained. In terms of the said list so maintained by the State of Haryana, the appellant was entitled to obtain an appointment on compassionate grounds. He was offered such an appointment by the State. It was the District Magistrate who came on the way and refused to provide for the post.?
6. The Apex Court has also taken view in case of State Bank of India & Ors. Vs. Jaspal Kaur reported in JT 2007 (3) SC page 35, wherein the Apex Court in para 30 held as under:
?30. Finally in the fact situation of this case, Sri. Sukhbir Inder Singh (late), Record Assistant (Cash & Accounts) on 01/08/1999, in the Dhab Wasti Ram, Amritsar branch, passed away. The respondent, widow of Sri Sukhbir Inder Singh applied for compassionate appointment in the appellant Bank on 5/2/2000 under the scheme which was formulated in 2005. The High Court also erred in deciding the matter in favour of the respondent applying the scheme formulated on 04/08/2005, when her application was made in 2000. A dispute arising in 2000 can not be decided on the basis of scheme that came into place much after the dispute arose, in the present matter in 2005. Therefore, the claim of the respondent that the income of the family of deceased is Rs. 5855/- only, which is less than 40% of the salary last drawn by Late Shri Sukhbir Inder Page 13 of 21 C/LPA/394/2018 ORDER Singh, in contradiction to the 2005 does not hold water.?
9. Therefore, considering the facts of this case and the submissions made by the learned Advocates for both sides, it is directed to the respondent State Authority to reconsider the case of the petitioner for appointment on compassionate ground on the basis of the policy which was prevailing at the time when the father of the petitioner expired and the date on which application was made by the petitioner for such appointment on compassionate ground and to pass appropriate reasoned order in accordance with law and the policy prevailed at the time of death of the father of the petitioner within three months from the date of receipt of copy of this order and to communicate same to the petitioner immediately thereafter.
10.This petition is accordingly disposed of at this stage without expressing any opinion on merits of the matter and with a liberty in favour of the petitioner to challenge orders that may be made by respondents before the appropriate forum in accordance with law if the same are adverse to the petitioner.
Direct Service is permitted.
4. Before learned Single Judge various contentions were raised including the orders passed in earlier round of writ petition i.e. Special Civil Application NO. 10153 of 2007 dated 27.6.2007 passed therein, the educational qualification of the claimant and the scheme for compassionate appointment, prevailing and applicability in the month of February 2005 when father of the claimant expired on 10.2.2005 and within five days the claimant Page 14 of 21 C/LPA/394/2018 ORDER applied for compassionate appointment and again rejection of request for compassionate appointment by the authority by an order dated 9.5.2008 which was subject matter of challenge of the writ petition. What is recorded by learned Single Judge in paragraphs 8, 9 and 10 reproduced herein remained undisputed.
"8. The factual details recorded herein above makes it clear that the respondents have acted in arbitrary manner while rejecting the request for compassionate appointment by the petitioner by their order dated 09.05.2008, in as much as, though by judgment and order dated 27.06.2007, which is supported by the decisions of the Honourable Supreme Court, respondents are required to consider the application of the petitioner as per the scheme which was in force in the month of February 2005 and that at the relevant time there was no criteria either for educational qualification that even for Class IV cadre, minimum education of SSC is must and consideration of gratuity and other retirement benefits while considering the actual necessity of job of such petitioner. Therefore, practically though respondents have to appoint the petitioner as a Peon in Class IV even though he has cleared examination in the month of February 2005 base upon the policy and scheme applicable at the relevant time, and that there is specific directions to that effect, respondents have Page 15 of 21 C/LPA/394/2018 ORDER relied upon the Government Resolution dated 29.03.2007 and thereby respondents have practically even committed if not contempt of Court then at least disobedience of Courts order without challenging such order before the higher forum and without conveying the Court even in such disposed off matter that irrespective of Courts direction they are unable to proceed in the matter because of some Government Resolution since such Resolution is not under challenge. However, discussion herein after would make it clear that there is no need to challenge such new resolution because the Honourable Supreme Court has repeatedly and even recently reconfirmed that claim of compassionate appointment under a scheme of particular year cannot be decided based on subsequent scheme that came into force after claim for compassionate appointment.
9. In the present case, it is undisputed fact that claim for compassionate appointment by the petitioner was in the month of February 2005 whereas its rejection was based upon the scheme dated 29.03.2007. Thereby, there is no option but to allow such petition when respondents have to rely upon the Government Resolution dated 10.03.2007 on the subject of compassionate appointment; copy of which is produced at page 34 with the Page 16 of 21 C/LPA/394/2018 ORDER petition (annexure I). Perusal of such resolution confirms that the government has decided to grant compassionate appointment to the dependent of deceased government employee as in such resolution/scheme there was no restriction regarding income claiming and so far as appointment in Class IV is concerned, the requisite educational qualification was only upto passing of 9th standard examination and it is only for Class III where SSC pas candidate was made eligible. Therefore, in the present case, when petitioner has applied in the year 2005 i.e. well before the Resolution/scheme dated 29.03.2007 though he is entitled to be appointed even in Class III because of clearance of SSC examination when he is requested to appoint him in Class IV as Peon, it is surprising to note that irrespective of such clear facts and circumstances to appoint the petitioner as a Peon on compassionate ground, the respondents have failed to take any steps till 01.06.2007.
10. There was one another circular dated 07.09.2002 on the subject of compassionate appointment but since it is only regarding definition of members of dependent family and when such resolution / circular does not speak anything about educational qualification or consideration of retirement Page 17 of 21 C/LPA/394/2018 ORDER benefits and property there is no reason for the respondents to deny the compassionate appointment to the petitioner on any such ground which are nothing but flimsy and arbitrary in nature. Thereby though now facts and settled legal position is very much clear, the respondents have resisted the petition by filing their affidavit in reply, contending the same repetition that they have acted upon the letter and circular dated 06.08.2005 which says that amendment in minimum educational qualification for such appointment is to be applied to all pending cases and, therefore, they have applied the provisions of circular dated 29.03.2007 to the present case. However, it was the previous position i.e. before judgment dated 27.06.2007, wherein respondents were directed to apply old scheme, but unfortunately the respondents have applied the new scheme dated 29.03.2007 and pleaded the same story in affidavit in reply that because of such new scheme when family of the petitioner are getting financial benefits from the property and other retirement benefits, petitioner is not entitled to compassionate appointment."
4.1. At the same time Mr.Jani, learned advocate appearing for the appellant-Board would contend that the private respondent has no indefeasible right to claim any Page 18 of 21 C/LPA/394/2018 ORDER appointment based on various Government Resolutions prevailing and applicable from time to time governing the appointment under the scheme for compassionate appointment and benefits conferred upon family of the deceased employee to the tune of Rs.6,50,000/- which included the amount towards DCRG, Provident Fund, Waiver of Housing Building Advance, Leave Encashment and other such benefits and even at this stage readiness and willingness is shown by the appellant-Board for payment of lump sum amount as per policy in existence of 5th July, 2011 whereby certain parameters are prescribed for payment of lump sum amount depending on the length of service rendered by the deceased employee. Our attention is also drawn to the decision of Apex Court in the case of State Bank of India vs. Raj Kumar 2010 (11) SCC 661 and another decision prior in time State Bank of India v. Jaspal Kaur (2007) 9 SCC 571 and it is reiterated that direction to grant compassionate appointment to respondent No.2 by learned Single Judge is contrary to law laid down by the Apex Court in above two cases which was either followed or relied on by various benches of Apex Court in other cases accordingly the order impugned deserves to be quashed and set aside.
5. As against above, Mr.K.B.Pujara, learned advocate appearing for respondent No.2 however would contend that even father of respondent No.2 who was appointed by the respondent on 7.9.1982 because of acquisition of land for the capital project and under the scheme, owner and occupier of the land was entitled to receive a job in any establishment of the Government in addition to the Page 19 of 21 C/LPA/394/2018 ORDER compensation for such land acquisition and thus continued serving as Junior Clerk till his death. As facts recorded by learned Single Judge about application preferred by legal heirs of the deceased employee within 5 days remained undisputed including that of filing earlier round of litigation and reliance placed and order dated 27.6.2007 passed in Special Civil Application No. 10153 of 2007 by coordinate bench in the case of the petitioner, it is submitted that learned Single Judge has considered all relevant aspects and applicability of the scheme at the time of death of father of the respondent and decision relied on by learned advocate for the Board which also were considered later on in the case of Canara Bank & Anr. v. M.Mahesh Kumar reported in (2015) 7 SCC 412 along with object of the scheme of compassionate appointment and applicability of relevant circular or the scheme concerned and finally concluded that claim for compassionate appointment is to be considered based upon the scheme that may be applicable on the date of claim and the above proposition of law is now finally concluded by the Apex Court in the decision of Canara Bank & Anr. (supra), the appeal has no merit and deserves to be dismissed.
6. We have given our thoughtful considerations to rival submissions made by learned advocates for the parties in the context of judgement of learned Single Judge directing the appellant-Board to grant compassionate appointment to respondent No.2 by quashing and setting aside the order dated 9.5.2008 and 16.11.2009 whereby application of respondent No.2 for compassionate appointment came to be rejected, we find that learned Single Judge has threadbare Page 20 of 21 C/LPA/394/2018 ORDER referred to relevant facts and the scheme applicable at the time of death of the deceased, eligibility criteria of the claimant and reasons for denial of claim towards compassionate appointment by the authorities, the relevant paragraphs reproduced in earlier part of the judgement while referring to the facts and reasonings of the learned Single Judge and inability on the part of learned advocate for the appellant to dispute any of the grounds except the reliance on two decisions of the State Bank of India (supra) to which, we are in respectful agreement with, but facts and circumstances of this case would derive benefit of law laid down in the case of Canara Bank & Anr. (supra) to which, reference is made in the beginning of this judgement and we are convinced that the appeal is bereft of merit deserves to be dismissed.
7. No case is made out to interfere. Appeal is dismissed.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) NAIR SMITA V. Page 21 of 21