Himachal Pradesh High Court
Smt. Pushpa Kumari vs State Of H.P. & Others on 18 April, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4093 of 2013 .
Reserved on: 7.4.2017.
Date of decision: April 18th , 2017.
Smt. Pushpa Kumari ...... Petitioner
Vs.
State of H.P. & others
Coram
r to
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
..... Respondents
Whether approved for reporting? No 1
For the petitioner : Mr. Lalit Kumar Sehgal, Advocate.
For the respondents : Ms. Meenakshi Sharma and Mr. Rupinder
Singh Thakur, Addl. Advocate Generals
for respondents No. 1 to 4.
Mr. Pradeep Kumar Sharma, Advocate,
vice Mr. Bhim Raj Sharma, Advocate, for
respondent No.6.
Tarlok Singh Chauhan, Judge.
By medium of this writ petition, the petitioner has claimed the following substantive reliefs:-
(i) That impugned action of the respondent not paying the grant in aid to the petitioner w.e.f. 06.06.2004 till date may kindly be declared unconstitutional, illegal, arbitrary and against all cannon of law.
(ii) That the respondents may kindly be directed to pay the arrears of the salary/grant in aid to the petitioner w.e.f. 06.06.2004 till date.
(iii) That impugned action of the respondent shifting the post of the language teacher from Govt. Senior Secondary School, Brehin, Tehsil Banjar, District Kullu, Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 19/04/2017 23:58:41 :::HCHP ...2...
H.P. to Government School Bajoura, Kullu, H.P. despite the fact that there is/was sufficient numbers of .
the students in the school may kindly be declared unconstitutional, illegal, arbitrary and against all canon of law.
(iv) That the respondents may kindly be directed to re-
create the post of the LT at Government Senior Secondary School, Brehin, Tehsil Banjar, District Kullu, H.P. and the respondents may kindly be further directed to allow the petitioner to continue as LT on PTA basis at Government Senior Secondary School, Brehin, Tehsil Banjar, District Kullu, H.P., whereas she r is working as LT on PTA basis since the year 2004.."
2. The brief facts, in nutshell, are that the petitioner passed her Matriculation Examination in the year 1992, 10+2 examination in the year 1995 and B.A. examination in the year 1998. The petitioner passed B.P.Ed. Examination in the year 2000, M.A. (Hindi) examination in the year 2003, B.Ed. course in the year, 2008 and passed her TET (LT) examination in the year, 2011.
3. In the year 2004, the respondents advertised the post of Teachers to be filled up on PTA basis in Government High School, Brehin, Tehsil Banjar, District Kullu, which was subsequently upgraded as Government Senior Secondary School, Brehin. The petitioner being eligible and qualified applied for the post of Language Teacher (LT) and after selection by the duly constituted selection committee was recommended for appointment and consequently came to be appointed as such and joined her duties as Language Teacher in the school on 6.6.2004.
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4. Now, the grievance of the petitioner is that despite her having been appointed as far as back on 6.6.2004, the respondents .
are not paying her grant-in-aid.
5. In reply to the petition, the respondents admitted that the petitioner was engaged as Language Teacher on 6.6.2004, but was not possessed of the essential qualification as had been notified on 9.6.1975 which reads as under:
"(a) For Hindi Teacher: Prabhakar (Honour in Hindi) with Matric (full) and L.T. Training or JBT (two years training) from a recognized University/Institution."
6. It is thereafter averred that the Government vide notification dated 31.12.2009 has notified Recruitment and Promotion Rules for the post of Language Teacher (Class-III, Non-Gazetted) in the Department of Elementary Education, which reads as under:
"(a) B.A. with Hindi as an elective subject from a recognized University with 50% marks in Hindi or its equivalent.
(b) Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in peculiar conditions prevailing in the Pradesh."
7. Lastly, it is averred that as per the Grant-in-Aid to Parents Teachers Association Rule, 2006, grant-in-aid to a PTA is not admissible in respect to teachers, who do not fulfill the educational and professional qualification fixed by the Government. Therefore, once the petitioner did not fulfill the requisite qualification for the post of Language Teacher, prevalent at that time, her claim for grant-in-aid is not tenable.
8. When the matter initially came up before this Court on 8.5.2015, the Court passed the following order:
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"It is contended by the learned counsel for the petitioner that in the year 2000, the Government of Himachal Pradesh has .
sanctioned various posts for Government High School, Brehan, District Kullu, H.P. and one post of Language Teacher was also sanctioned and therefore the same cannot be shifted from the said school to any other school. In support of his contention, he has also relied upon the staffing pattern vide office order, Annexure P-13, dated 19.10.2000. In this way of the matter, let the respondents file supplementary affidavit explaining the position within a period of four weeks."
9. r In compliance to the aforesaid order, the respondents filed their supplementary affidavit wherein it was averred that the post of Language Teacher from Government High School, Brehin was shifted to Government Senior Secondary School, Bajaura, District Kullu vide this Directorate letter No. EDN-H(III)B(I)-1/2004 (Rationalization) C&V, dated 11.02.2005 under rationalization.
10. Thereafter, when the matter came up for consideration on 30.10.2015 the Court passed the following order:
"It is contended by the respondents in the reply that the petitioner was appointed as a Language Teacher on 6.6.2004. it is not understood as to how the respondents are then invoking the provisions of PTA Grant-in-Aid Rules, 2006 which were not in existence on the date when the petitioner was engaged. Let respondents file supplementary affidavit regarding this position. The needful be done within three weeks. List for consideration on 20.11.2015."
11. In compliance to the aforesaid order, the respondents took a somersault by alleging that at the time of engagement of the petitioner there was no post of Language Teacher in the school as would be evident from para-2 of the supplementary affidavit, which reads thus:
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"That in compliance to the above direction/orders of this Hon'ble High Court, it is respectfully submitted that though the petitioner was .
initially engaged as Language Teacher on PTA basis in 2004; ye the fact is that she was engaged on PTA basis in Government High School, Brehin, District Kullu by the Parent Teacher Association of the school concerned as per Annexure P-1 in June, 2004 on local funding at the honorarium of Rs.1700/- per month as local arrangement and she did not posses the required qualification at that time. Moreover, there was no sanctioned post of L.T. in the school concerned at the time of initial engagement of the petitioner; therefore, she was not entitled for any grant which could only be sanctioned against a sanctioned post."
12. This constrained the Court to pass the following order on 11.8.2016:
"It has been specifically stated in para 2 of the Supplementary affidavit filed by respondent No.2 in compliance to the directions passed by this Court on 30.10.2015 that there was no sanctioned post of Language Teacher (LT) in the school in question. However, learned counsel for the petitioner has invited my attention to Annexure P-13, wherein staffing pattern for the school in question has been set out and it is clearly indicated therein that there was already one sanctioned post of Language Teacher (LT) in the concerned school.
In such circumstances, let respondent No.2 file supplementary affidavit explaining the aforesaid position. Needful be done within four weeks."
13. In compliance to the aforesaid direction, the respondents filed supplementary affidavit stating therein that one post of Language Teacher had been shifted from Government High School, Brehin, District Kullu to Government Senior Secondary School, Bahjaura, District Kullu under rationalization Scheme vide Office order No. EDN-
H(III)B(I)1-2004 (Rationalisation) C&V dated June, 2002 and, ::: Downloaded on - 19/04/2017 23:58:41 :::HCHP ...6...
therefore, there was no sanctioned post of Language Teacher at Brehin at the time when the petitioner had come to be appointed.
.
14. The allegations of the respondents were disputed by the petitioner by filing counter-affidavit wherein the petitioner placed on record the information obtained by her under Right to Information Act, which clearly revealed that there were two posts of Language Teacher sanctioned for Government High School, Brehin, District Kullu and it was one, out of these two posts, that one of the posts that had been shifted under the rationalization policy, whereas against the other sanctioned post one Sh. Narinder Kumar Mishra remained posted as Language Teacher in the said school till his superannuation in the month of February, 2004. It was after the retirement of said Sh. Mishra that in absence of a Language Teacher in the school and in view of the enrolment of the students, that necessitated the PTA to fill up the post of Language Teacher which after due process of law was filled up by appointing the petitioner by following the due process of law.
15. Thereafter, when the matter subsequently came up before this Court for consideration on 2.12.2016, the following order came to be passed:
"A perusal of the reply filed on behalf of respondents No. 1 to 4 on the affidavit of Director, Elementary Education on 23.8.2013 shows that the petitioner was appointed on 4.6.2004, as would be evident from the preliminary submissions raised therein, which read thus:
"1. That it is submitted that the petitioner was engaged as Language Teacher on PTA basis in Government High School, Brehin, District Kullu on 6th June, 2004 by the Parent Teacher Association of the school concerned as per Annexure P-1. The PTA also decided that the selected teacher will be paid @ 1700/-::: Downloaded on - 19/04/2017 23:58:41 :::HCHP
...7...
per month (now increased to Rs.3500/-). As per para 2 of the present writ petition, she passed B.A. in the year 1998, M.A. (Hindi) in 2003 and B.Ed. in 2008 and .
qualified Teacher Eligibility Test (LT) in the year 2011."
2. Similar averments are contained in the supplementary affidavit filed by the Director, Elementary Education in compliance to the directions passed by this Court on 30.10.2015 and the relevant paragraph read thus:
"2. That in compliance to the above direction/orders of this Hon'ble High Court, it is respectfully submitted that though the petitioner was initially engaged as Language Teacher on PTA basis in 2004."3.
r When the case came up before this Court on 22.9.2016, the learned Additional Advocate General prayed for time to obtain instructions in light of the counter affidavit filed by the petitioner and the same were placed on record by the learned Deputy Advocate General on 1.12.2016.
4. It is shocking to note that the petitioner, who in the earlier affidavit was stated to have been engaged on PTA basis in 2004 is now stated to have been engaged on 20.6.2006, which is evidently in contradiction to the earlier stand of the respondents.
5. In such circumstances, before initiating any coercive steps, let Show Cause Notice be issued to the Director, Elementary Education, calling upon him to file an affidavit as to which one of the aforesaid date is correct date and why and also explain the circumstances on the basis of which the earlier affidavit (s) have been filed before this Court."
.
16. Finding itself in a tight spot, the Director, Elementary Education conceded that the earlier affidavit filed by him whereby it has been alleged that the petitioner had been appointed on 20.6.2006 was factually incorrect as she was admittedly appointed on 4.6.2004.
This would be clearly evident from para-5 of the supplementary affidavit, which reads thus:
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"5. That the perusal of Parents Teachers Association Register of Govt. Sr. Sec. School, Brehin, District Kullu .
reveals that the petitioner was engaged as Language Teacher on PTA basis on 04.06.2004 vide resolution No. 31 dated 04.06.2004 and as per the resolution dated 20.06.2006 in continuation of resolution No. 39 dated 05.05.2006 and resolution No. 41 dated 05.06.2006, the petitioner wa engaged to teach the students till the constitution of next PTA @ Rs.1500/- per month. There is nothing on record of the PTA to show that after engagement as Language Teacher on PTA basis on 04.06.2004, the petitioner has ever been disengaged. As such, from perusal of the record of PTA, it appears that the correct date of her as Language Teacher by the PTA is 04.06.2004 instead of 20.06.2006."
17. The petitioner has thereafter filed a counter affidavit bringing on record the letter dated 24.5.2014 wherein it was recommended that all categories of PTA would be allowed to complete the requisite educational qualification till 16.8.2016 as per the Recruitment and Promotion Rules and it was also recommended to release the Grant-in-Aid in their favour.
I have heard learned counsel for the parties and gone through the material placed on record.
18. At the outset, it may be observed that the manner, in which the respondents have conducted themselves by filing of contradictory affidavits to suit their convenience, cannot be appreciated. The different stands taken in the affidavits (supra) leads one to think that the respondents are only toying with the teachers education in the State without any definite policy or object and is also trying to mislead this Court by filing affidavits containing reckless and irresponsible statements. It has to be remembered that the Court ::: Downloaded on - 19/04/2017 23:58:41 :::HCHP ...9...
proceedings are sacrosanct and, therefore, no person or authority can be permitted to take the same lightly.
.
19. Coming to the merits, it would be noticed that the petitioner was admittedly appointed as Language Teacher on PTA basis on 4.6.2004 and has been continuously teaching since then.
The only ground raised by the respondents for denying the benefit of Grant-in-Aid to the petitioner is that she was not qualified in terms of the Grant-in-Aid Rules. However, it is not their case that the petitioner had not been appointed against a vacancy on 4.6.2004. Therefore, the moot question that arises for consideration is whether the initial appointment of the petitioner which had been made by the PTA prior to the promulgation of the Rules can be considered to be a relevant factor to refuse the Grant-in-Aid to the petitioner, more particularly, when she acquired this qualification i.e. completed B.Ed. course in the year 2008 and thereafter even passed TET (LT) examination in the year 2011.
20. Similar question was considered by this Court in Lata Kumari vs. State of H.P. and others, CWP No. 8692 of 2012, decided on 10.4.2015, wherein it was observed as under:
"5. It has nowhere the case of the respondent that the petitioner is not qualified in terms of the 'Grant in Aid Rules. It has also not their case that the petitioner has not been appointed against a vacancy w.e.f. 6.1.2006. Then can the mere fact that the initial appointment of the petitioner had been made by the PTA prior to promulgation of the Rules be considered to be a relevant factor to refuse the relief to the petitioner.
6. To my mind, the stand of the respondents cannot be countenanced once they themselves admit that the petitioner had been appointed against a vacancy w.e.f. 6.1.2006. Even otherwise, ::: Downloaded on - 19/04/2017 23:58:41 :::HCHP ...10...
the petitioner has only claimed the arrears of grant in aid w.e.f. 2006 and not from the date of her initial appointment in the year 2002.
.
7. At this stage, a wider issue arises for consideration as to whether the State or its instrumentalities as a model employer after having extracted more than a decade of service from the petitioner can claim that she has not been regularly appointed.
8. A learned Division Bench of this Court in LPA No. 132 of 2014 titled Dr. Lok Pal vs. State of Himachal Pradesh and other decided on 18.12.2014 was seized of a similar matter where the appointment of the person was though on a consolidated salary of Rs.43000/- per month but after his appointment he was actually paid Rs.21000/- per month and the learned Division Bench held this to be exploitation on the sheer strength of the unequal bargaining power and it was held as under:
"7. This case reflects a sorry state of affairs where the respondents on the sheer strength of its bargaining power have taken advantage of their position and imposed wholly un-equitable and unreasonable condition of employment on their prospective employees, who did not have any other choice but to accept the employment on the terms and conditions offered by the respondents. This action of the respondents is violative of Article 14 of the Constitution. Here it is apt to reproduce relevant observations of the Hon'ble Supreme Court in the celebrated decision of Central Inland Water Transport Corporation Ltd. Vs. Brojo Nath Ganguly and another, (1986) 3 SCC 156, which reads as under:-
"88. As seen above, apart from judicial decisions, the United States and the United Kingdom have statutorily recognized, at least in certain areas of the law of contracts, that there can be unreasonableness (or lack of fairness, if one prefers that phrase) in a contract or a clause in a contract where there is inequality of bargaining power between the parties although arising out of circumstances not within their control or as a result of situations not of their creation. Other legal systems also permit judicial review of a contractual transaction entered into in similar circumstances. For example, section 138(2) of the German Civil Code provides that a transaction is void "when a person" exploits "the distressed situation, inexperience, lack of judgmental ability, or grave weakness of will of another to ::: Downloaded on - 19/04/2017 23:58:41 :::HCHP ...11...
obtain the grant or promise of pecuniary advantages........which are obviously disproportionate to the performance given in return." The position according to the .
French law is very much the same.
89. Should then our courts not advance with the times?
Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of nineteenth-century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample under-
foot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Art.
14. This principle is that, the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a ::: Downloaded on - 19/04/2017 23:58:41 :::HCHP ...12...
prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may .
be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and r unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its, own facts and circumstances."
In terms of the aforesaid exposition of law, it is clear that this Court has the jurisdiction and power to strike or set aside the unfavourable term of contract of employment which purports to give effect to unreasonable bargain violating Article 14 of the Constitution.
8. The undertaking obtained from the appellant is so unfair and unreasonable that it shocks the conscious of this Court. It reflects the inequality of the bargaining power between the appellant and the respondents which emanates from the great disparity in the economic strength between the job seeker and job giver.
9. The appellant was compelled by circumstances to accept the offer made by the respondents, but then the mere acceptance of this offer would not give it a stamp of approval regarding its validity. It is an age old maxim that "necessity knows no law" and a person sometimes may have to succumb to pressure of the other party to bargain who is in stronger position. Although, it may not be strictly in place, but the Court cannot shut its eyes to this ground reality.
10. At this stage, it shall be apt to quote the following observations of the Hon'ble Supreme Court in Chairman and MD NTPC Ltd. Vs. Rashmi Construction Builders and Contractors (2004) 2 SCC 663:-
"28. Further, necessitas non habet legem is an age-old maxim which means necessity knows no law. A person ::: Downloaded on - 19/04/2017 23:58:41 :::HCHP ...13...
may sometimes have to succumb to the pressure of the other party to the bargain who is in a stronger position."
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11. Notably the respondents herein are none other than the functionaries of the State who are expected to function like a model employer. A model employer is under an obligation to conduct itself with high probity and expected candour and the employer, who is duty bound to act as a model employer has social obligation to treat an employee in an appropriate manner so that an employee is not condemned to feel totally subservient to the situation. A model employer should not exploit its employees and take advantage of their helplessness and misery. The conduct of the respondents falls short of expectation of a model employer.
12. The Hon'ble Supreme Court in its decision in Bhupendra Nath Hazarika and another Vs. State of Assam and others, (2013) 2 SCC 516 has succinctly explained this position in the following terms:-
"61. Before parting with the case, we are compelled to reiterate the oft stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept.
62. Almost a quarter century back, this Court in Balram Gupta V. Union of India 1987 Supp SCC 228 had observed thus: (SCC p. 236, para 13)
"13.... As a model employer the Government must conduct itself with high probity and candour with its employees."
In State of Haryana V. Piara Singh (1992) 4 SCC 118 the Court had clearly stated: (SCC p. 134, para 21).
"21....The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16."
63. In State of Karnataka V. Umadevi (3) (2006) 4 SCC 1 (SCC P. 18, para 6) the Constitution Bench, while discussing the role of State in recruitment procedure, stated that if rules have been made under Article 3089 of the Constitution, then the Government can make appointments ::: Downloaded on - 19/04/2017 23:58:41 :::HCHP ...14...
only in accordance with the rules, for the State is meant to be a model employer.
64. In Mehar Chand Polytechnic V. Anu Lamba (2006) 7 .
SCC 161 (SCC p. 166, para 16) the Court observed that public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India and that the recruitment rules are framed with a view to give equal opportunity to al the citizens of India entitled for being considered for recruitment in the vacant posts.
65. We have stated the role of the State as a model employer with the fond hope that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the r employees. It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretised. We say no more."
9.. The matter can be looked from a different angle. Indisputably the petitioner had been appointed and assigned the duties to teach the students and such duties have been continuously performed by her. Then can the respondents, who are model employers, be permitted to act with total lack of sensitivity and indulge in "Begar", which is specifically prohibited under Article 23 of the Constitution of India.
10. The State government is expected to function like a model employer, who is under an obligation to conduct itself with high probity and expected candour and the employer, who is duty bound to act as a model employer has social obligation to treat an employee in an appropriate manner so that an employee is not condemned to feel totally subservient to the situation. A model employer should not exploit its employee and take advantage of ::: Downloaded on - 19/04/2017 23:58:41 :::HCHP ...15...
their helplessness and misery. In the present case the conduct of the respondents falls short of expectation of a model employer.
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11. It is not the case of the respondents that petitioner has not been discharging her duties diligently, honestly and faithfully. Therefore, in such circumstances while demanding her legitimate due by way of grant in aid under the Rules, the petitioner has not asked for the moon.
12. In view of the aforesaid discussion, there is merit in the petition and the same is allowed and the respondents are directed to release the grant-in-aid to the petitioner as per the 'Grant-in-Aid to Parent Teacher Association Rules, 2006' from the date of promulgation of the Rules. No costs."
21. Evidently, the case of the petitioner is better placed than Lata Kumari's case (supra), who had been appointed only on 6.1.2006. Whereas in the instant case, the petitioner admittedly has been appointed on 4.6.2004 and has already put in nearly 1½ decades of service. Therefore, at this stage, to deny her the benefit of Grant-in-Aid would not only be a travesty of justice but would rather amount to extracting 'Begar' from the petitioner, which is specifically prohibited under Article 23 of the Constitution of India. It would amount to be exploitation and taking advantage of the situation in which the petitioner is placed.
22. In view of the aforesaid discussion and more particularly in light of the decision already rendered by this Court in Lata Kumari's case (supra), I find merit in this petition and the same is accordingly allowed. The respondents are directed to release the Grant-in-Aid to the petitioner as per the 'Grant-in-Aid to Parent Teacher Association Rules, 2006' from the date of promulgation of these Rules.
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The petition is disposed of in the aforesaid terms, so also the pending application(s) if any, leaving the parties to bear their own .
costs.
April 18th, 2017. ( Tarlok Singh Chauhan ), (GR) Judge r to ::: Downloaded on - 19/04/2017 23:58:41 :::HCHP