Kerala High Court
K.N.Ajith Kumar vs State Of Kerala on 21 August, 2015
Bench: A.M.Shaffique, K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 10TH DAY OF FEBRUARY 2017/21ST MAGHA, 1938
WA.No. 1986 of 2015 () IN WP(C).14780/2015
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AGAINST THE ORDER/JUDGMENT IN WP(C) 14780/2015 of HIGH COURT OF
KERALA DATED 21-08-2015
APPELLANT(S)/PETITIONER:
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K.N.AJITH KUMAR
MANJU MANDIRAM, KS PURAM PO,
KARUNAGAPPALLY, KOLLAM 690544
BY ADVS.DR.K.P.SATHEESAN (SR.)
SRI.P.MOHANDAS (ERNAKULAM)
SRI.ANOOP.V.NAIR
SRI.S.VIBHEESHANAN
RESPONDENT(S)/RESPONDENTS:
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1. STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001
2. THE HIGH COURT OF KERALA
REPRESENTED BY ITS REGISTRAR GENERAL,
ERNAKULAM, KOCHI 682031
3. THE REGISTRAR (RECRUITMENT AND COMPUTERIZATION)
HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682031
R2 & 3 BY ADV. SRI.ELVIN PETER P.J.
BY SR GOVERNMENT PLEADER SRI.K.B.RAMANAND
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16-01-2017,
ALONG WITH WA. 2043/2015, WA. 2066/2015, WA. 2099/2015, WA.
2117/2015, THE COURT ON 10-02-2017 DELIVERED THE FOLLOWING:
A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.
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WA Nos.1986, 2043, 2066, 2099 & 2117 of 2015
===========================
Dated this, the 10th day of February, 2017
J U D G M E N T
Shaffique, J.
These appeals have been filed against a common judgment and hence are heard and decided together. The petitioners are the appellants.
2. The short facts involved in the writ petitions are as under:-
Petitioners were applicants for appointment to the post of District and Sessions Judge in the Kerala State Higher Judicial Service by direct recruitment. They participated in the selection process pursuant to the notification dated 24/2/2014. In the notification, the number of vacancies were shown as 4 and that too "anticipated". The main contention urged by the petitioners is that they were included in the ranked list which were to remain in WA No.1986/2015 & conn.cases -:2:- force for about one year or until the next notification is published and as on the date of notification itself, there were substantial vacancies in the quota earmarked for direct recruitment and the notification should not have been limited for four anticipated vacancies. Petitioners contended that as per the Kerala State Higher Judicial Service Rules, 1961 (hereinafter referred to as the 1961 Rules), 25% of the posts in the category of District and Sessions Judge shall be filled by direct recruitment from the Bar. At the relevant time, there were 146 posts of District and Sessions Judges, out of which 25% would come to 37. Only 21 were in actual service and therefore there was a vacancy of 16 which ought to have been filled up from the rank list.
3. The High Court in the counter affidavit contended that 25% of the posts to be filled up by way of direct recruitment from the Bar is with reference to 25% of the substantive vacancies in the permanent cadre and not with reference to the total number of District and Sessions Judges. According to them, the substantive post in the cadre is only 99. 18 directly appointed District Judges were already in office. One of them was to retire in 2014. Therefore, there were 7 vacancies, which is kept vacant to WA No.1986/2015 & conn.cases -:3:- fill up NCA vacancies of different communities. 4 anticipated vacancies had arisen only on account of the fact that names of 4 District Judges were recommended for appointment as High Court Judges which were to be filled up by direct recruitment from the Bar. Reference is made to Rule 5 of Part II KS&SSR wherein there is clear prescription that when Special Rules prescribe that vacancies are to be filled up in a proportion by direct recruitment and by transfer, it has to be against substantive vacancies in the permanent cadre. It is also contended that there were only 99 posts in the permanent cadre approved by the Government. 38 Fast track courts were set up as per the recommendation of the Central Government in 2010 and 9 special courts were also established which were not treated as permanent posts in the cadre though the High Court had been requesting the Government to increase the cadre strength taking into account the temporary posts as well.
4. The learned Single Judge after considering the rival contentions dismissed the writ petitions on the ground that the cadre strength was only 99 and therefore inviting notification for anticipated vacancies was justified and at the relevant time, there WA No.1986/2015 & conn.cases -:4:- was no substantive vacancy in the said post. It is impugning the aforesaid judgment that these appeals have been filed.
5. Heard the learned senior Counsel Sri.T.Krishnanunni, Sri.Dr.K.P.Satheesan and learned counsel Sri.M.Sasindran, Sri.Aravindakumar Babu, Sri.Hood and Sri.K.C.Santhosh Kumar appearing on behalf of the appellants, the learned Special Government Pleader Sri. Manoj appearing for the State and Sri.Elvin Peter, learned counsel appearing on behalf of the High Court.
6. The main contention urged by the learned counsel appearing for the petitioners is based on the change in the statutory format as far as the 1961 Rules are concerned, which according to the appellants clearly establish the fact that "25% of the posts in the category" clearly indicates the total number of posts including temporary posts and it is not confined to permanent posts in the cadre as held by the learned Single Judge. It is submitted that the present rules have been substituted by GO (P) No.98/2008/Home dated 9/6/2008 and prior to substitution, it was clearly indicated that the appointment by direct recruitment shall be 1/3rd of the permanent posts in categories 1 and 2 taken WA No.1986/2015 & conn.cases -:5:- together. It is therefore argued that the word "permanent posts"
have been subsequently modified and a separate provision had been made as Rule 2 (c)(iii) by which reference is only made to "25% of posts in the category". The word "permanent posts" in the previous rules have now been changed to "posts in the category" with a clear intention that the 25% posts is not confined to permanent posts whereas it includes temporary posts as well. Learned counsel also argued that the intention of the legislature was not to have 25% of the appointments by way of direct recruitment from the permanent cadre strength. Reference is made to the 'Note' immediately below Rule 1 wherein there is reference to the number of posts in category (1) and (2), it being limited to "cadre strength of the posts" in all three categories put together. Therefore, it is contended that the legislature has consciously used the word "posts" in Rule 2(c)(iii) avoiding the word "permanent posts" which was available in the previous rules. It is also argued that the rules do not specify that the rank list prepared shall remain in force for a particular period. Further, the notification also does not indicate that the appointment is to specified posts whereas it is shown as four WA No.1986/2015 & conn.cases -:6:- vacancies which are anticipated. It is argued that if vacancies existed as on the date of notification, and had occurred while the list was in force, necessarily, appointments ought to have been made to such vacancies and should not have been limited to four anticipated vacancies. Specific reference had been made to the order passed by the Apex Court in Malik Mazhar Sultan (3) v. Uttar Pradesh Public Service Commission and Others [(2008) 17 SCC 703] wherein directions had been issued as to how vacancies in the cadre of District Judge have to be filled up by way of direct recruitment as well. It is argued on the basis of the said judgment that as per the Apex Court, the select list prepared for all categories shall be valid till the next select list is published. It is therefore contended that the procedure now adopted by the High Court in inviting fresh applications for appointment to the post of District Judges by way of direct recruitment shall not be proceeded further until the vacancies which had arisen during the currency of the rank list has been filled up from the very same rank list.
7. Learned counsel also placed reliance upon judgment in Rakhi Ray and Others v. High Court of Delhi [(2010) 2 SCC WA No.1986/2015 & conn.cases -:7:- 637] and submitted that though in the said judgment, the Apex Court held that the Delhi High Court cannot be directed to fill up the vacancies from the unexhausted select list which arose subsequent to issue of advertisement, that was a case in which there was specific rules which clearly indicated that the vacancy position as on the date of notification alone matters.
8. Learned counsel for the petitioners also placed reliance on an affidavit filed by the Government in WP(C) No. 23647/2009, wherein the Government has taken a contention that the posts available in Fast Track Courts, Tribunals and other deputation posts which existed for more than six months will have to be taken into account for arriving at the total cadre strength of District Judges for the purpose of fixing the 25% quota for direct recruitment. That was a case in which writ petitioner sought for a direction to appoint her in the Kerala Higher Judicial Service in order to fill up the 25% of the sanctioned strength by way of direct recruitment from the existing select list. Further reference has also been made to the Government Order dated 14/11/2012 by which the Government having accorded sanction for continuation of the 38 Fast Track Courts upto 31/3/2015 accepted WA No.1986/2015 & conn.cases -:8:- the proposal of the High Court for making permanent the said 38 Fast Track Courts by converting them as Additional District and Sessions Court for establishment of 10% additional cadre strength of the existing Courts in the State and in the following manner:-
"Government have examined the proposals in detail and are pleased to accord sanction:-
(i) to make the 38 Fast Track Courts in the State permanent by converting them as Additional District and Sessions Court with the existing infrastructure and staff strength."
9. Further reference is also made to Government Order dated 29/5/2015 by which the proposal of the High Court to enhance the cadre strength of District Judges in the State from 99 has been enhanced to 130. In the said Government Order, it is stated that the cadre strength at 99 was fixed in the meeting held on 9/12/2010. The proposal of the High Court was to fix the same at 146 as per Rule 2(18) of KS & SSR Part I. Earlier proposal of the High Court was rejected by the Government on the basis of financial crunch. The matter was again taken up before the Government and it was reported that there will be no additional financial burden on the State. The Government in their meeting decided to exclude deputation post and the Family Courts in WA No.1986/2015 & conn.cases -:9:- which retired Judges are functioning and accordingly, 7 deputation posts and 9 Family Courts where retired Judges were functioning were excluded and the cadre strength has been fixed at 130 subject to the condition that no fresh post creation will be involved. The learned single Judge however quashed the above Government Order and has directed the matter to be considered afresh. The said judgment is not impugned in these appeals.
10. Another Government Order dated 30/8/2016 has been brought to the notice of this Court wherein the Government observed that upholding the spirit of the verdict of the Apex Court in Malik Mazhar Sultan (supra), the Government was pleased to fix and define the cadre strength of the District and Sessions Judges in the Kerala State Higher Judicial Service as follows:-
"Cadre strength shall constitute all the sanctioned posts of District and Sessions Judges (including Additional District and Sessions Judges), all the sanctioned posts of Judges in the equivalent stature, all such temporary posts existing for more than six months and all such posts created by Government from time to time, in the Kerala State Higher Judicial Service."
11. Learned counsel for the petitioners also relied upon the WA No.1986/2015 & conn.cases -:10:- judgment in V.Bhasker Rao and Others v. State of A.P and Others [(1993) 3 SCC 307]. That was a case in which question that had arisen was regarding seniority in the light of Andhra Pradesh State Higher Judicial Service Special Rules. Three petitioners were appointed as District and Sessions Judges by appointment order dated 12/10/1981. They joined service on 23/10/1981 and 30/10/1981. Respondents 4 to 16 were appointed as District and Sessions Judges by transfer from among Subordinate Judges during 1978-79. The permanent vacancies in their quota became available only in the year 1983. The question considered was regarding the seniority. Apex Court proceeded on the basis that petitioners were appointed as substantive members of the Service earlier to respondents 4 to 16. On the basis of the Special Rules, it was held that appointments of respondents 4 to 16 were made under Rule 2 of the Special Rules by the State Government in consultation with the High Court on account of the fact that the Special Rules provide a complete scheme for appointment and seniority of members of service, the State Rules have no application. This judgment has no application to the facts of the present case as we are not concerned with the claim for WA No.1986/2015 & conn.cases -:11:- seniority.
12. In the case on hand, the short issue involved is whether the notification for appointment to four anticipated vacancies alone can be justified based on the vacancies of direct recruits available in the cadre.
13. There is no dispute about the fact that at the relevant time, 146 posts were available of which according to the High Court, the permanent cadre strength of District Judges in the Kerala State Higher Judicial Service was only 99. It is further contended that subsequent to fixation of cadre strength, 6 Family Courts were established. 2 Special Courts for trial of offences under SC/ST (Prevention of Atrocities) Act started functioning in the year 2014, one Special Court for the offences of Atrocities against women and children also started functioning apart from 38 Fast Track Courts. The 38 Fast Track Courts were established as per recommendation of the XIth Finance Commission initially for a period of five years and thereafter extended upto the year 2012. Those Fast Track Courts were converted as permanent Additional District Courts on 14/11/2012 and, added together, the cadre strength would come to 146.
WA No.1986/2015 & conn.cases -:12:-
14. Learned counsel for High Court placed reliance on the judgment of the Apex Court in Mahesh Chandra Verma v. State of Jharkhand (AIR 2013 SC 862) in order to substantiate the fact that the appointment made to the Fast Tracks Courts were in an ex cadre post and temporary, which cannot be termed as sanctioned posts in the permanent cadre. Reference is made to the judgment in Haneefa v. State of Kerala (2012 (4) KLT 583) to contend that appointments are to be made based on Rule 5 of Part II KS & SSR. The Administrative Committee of the High Court in its meeting held on 11/6/2013 resolved to request the Government to fix the cadre strength of District judge at 146 which was allowed only by GO dated 29/5/2015 and that too to a strength of 130. The term "cadre" is defined in Rule 12(4) in Chapter 1 of KSR Part I by which the cadre means, the strength of a service or part of a service sanctioned as a separate unit. Rule 2(18) of Part I of KS & SSR 1958 indicates that the permanent cadre of each service, class, category and grade shall be determined by the State Government. As per Rule 5(a) of Part II KS&SSR, it is clearly indicated that, when appointments are made by direct recruitment and by transfer and when a proportion is WA No.1986/2015 & conn.cases -:13:- provided in the Special Rules concerned, which may require vacancies to be filled by persons recruited directly and by those recruited by transfer, the proportion shall be applicable only to substantive vacancies in the permanent cadre. It cannot be disputed that the Fast Track Courts and the Special Courts established were not considered as a permanent post in the cadre. Rule 2(18) of Part I KS &SSR defines cadre as:- "the permanent cadre of each service, class, category and grade shall be determined by the State Government." It is therefore argued by the respondents on the strength of the judgment in Mahesh Chandra Verma (supra) which refers to earlier judgment in Brij Mohan Lal-2 that the appointments in Fast Track Courts were not considered to be appointments to a permanent cadre. It is therefore contended that eventhough the word post is mentioned in the Special Rules for appointment to the 25% quota for direct recruitments, it has to be read along with Rule 5 of Part II KS&SSR and the 25% quota can only be against substantive vacancies in the permanent cadre.
15. The issue that arises for consideration in the present batch of appeals is in regard to the interpretation to be given to WA No.1986/2015 & conn.cases -:14:- the Special Rules especially Rule 2(c)(iii) which reads as under:-
"2(c)(iii) 25% of the posts in the category shall be filled by direct recruitment from the Bar on the basis of aggregate marks/grade obtained in a competitive examination and viva voce conducted by the High Court.
Note: The rules relating to reservation and appointments (Rules 14 to 17 in Part II of the Kerala State and Subordinate Service Rules, 1958) shall apply to appointment by direct recruitment to category (3) under Rule 2(c)(iii)"
16. What exactly is the meaning of the word "posts in the category" is the question. Rule 5 of Part II KS & SSR reads as under "5. Method of recruitment: Where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer, but is both by direct recruitment and by transfer.
(a) the proportion or order in which the Special Rules concerned may require vacancies to be filled by persons recruited direct and by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre;
(b) a person shall be recruited direct only against a substantive vacancy in such permanent cadre, and only if the vacancy is one which should be filled by direct recruit under the Special Rules referred to in WA No.1986/2015 & conn.cases -:15:- clause (a); and
(c) recruitment to all other vacancies shall be made by transfer.
Note.(1) All permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies.
(2)Leave vacancies and vacancies of less than 6 months' duration shall be treated as vacancies of short duration.
(3)Whenever a ratio or percentage is fixed for different methods of recruitment/appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time."
17. Apparently Rule 2(c)(iii) cannot be read in isolation. The word "posts in the category" has to be read along with Rule 5 of Part II KS & SSR, in which event there is no ambiguity in the Rules as the 25% posts have to be in the permanent cadre or on the basis of the cadre strength of the posts. A distinction is tried to be drawn based on Rule 1 of 1961 Rules between appointment to Categories 1 and 2 wherein the note indicated that it has to be limited to number of posts in category (1) to 10% and category (2) to 25% of the cadre strength of the posts in all the three WA No.1986/2015 & conn.cases -:16:- categories put together. Rule 1 and 2 reads as under:-
"1. Constitution:- The Service shall consist of the following categories namely:-
Category (1): Supertime Scale District and Sessions Judge.
Category (2): Selection Grade District and Sessions Judge.
Category (3): District and Sessions Judge including Additional District Judge. Note- Number of posts in category (1) shall be limited to 10% and that in category (2) shall be limited to 25% of the cadre strength of the posts in all the three categories put together.
2. Method of appointment (a) Appointment to category (1) shall be made by the High Court by promotion from category (2).
(b) Appointment to category (2) shall be made by the High Court by promotion from category (3). Note:-Appointment to category (1) and (2) shall be made on the basis of merit and ability, seniority being considered only where merit and ability are equal.
(c) Appointment to category (3) shall be made as follows:
(i) 50% of the posts in the category shall be filled by appointment by transfer from category 1 (Subordinate Judges/Chief Judicial Magistrates) in the Kerala State Judicial Service on the basis of merit and ability, seniority being considered only where merit and ability are equal.
WA No.1986/2015 & conn.cases -:17:-
(ii) 25% of the posts in the category shall be filled by appointment by transfer based on a limited competitive examination and viva voce and on the basis of merit and ability from category 1 (Subordinate Judges/Chief Judicial Magistrates) in the Kerala State Judicial Service with not less than five years of substantive service as such:
Provided that in the absence of a select list of officers for appointment under the sub-clause for want of qualified and eligible candidates, the available vacancies shall be filled up on temporary basis by transfer from category 1 (Sub Judges/Chief Judicial Magistrates) in the Kerala State Judicial Service in the manner provided in sub-clause (i) and such appointees shall be replaced as soon as the select list prepared under this clause comes into force.
(iii) 25% of the posts in the category shall be filled by direct recruitment from the Bar on the basis of aggregate marks/grade obtained in a competitive examination and viva voce conducted by the High Court.
xxxxx"
There is a reason for mentioning cadre strength of posts in Rule 1 of the Special Rules. This is on account of the fact that there cannot be any ambiguity in the matter relating to the number of posts in category (1) and (2). Rule 2 is the method of appointment to the three categories which stands on its own legs where WA No.1986/2015 & conn.cases -:18:- specifically the word "cadre strength" has not been mentioned. This is for the reason that there is no necessity to mention the word "cadre strength of the posts" since the Constitution in Rule 1 itself clearly indicates the categories of service and the percentage of different categories put together. Therefore, there was no necessity to define the word "posts in the category" as it has already been taken note of in Rule 1. Now coming to the Rules which prevailed prior to 12/6/2008, there is a complete change in Rule 1 as well as Rule 2. The Rules read as under:-
(a) Appointment to category (1) shall be made by the High Court by promotion from category (2).
(b) Appointment to category (2) shall be made by transfer from the category 1 Subordinate Judges/C.J.M.s. of the Kerala Judicial Service or by direct recruitment form the Bar, provided that the number of posts in category (2) to be filled up or reserved to be filled up by direct recruitment shall be one-third of the permanent posts in categories (1) and (2) taken together."
Even Rule 1 did not indicate about the cadre strength. That is the reason why the word permanent posts had been mentioned in Rule (b).
18. Therefore, we are of the view that taking into WA No.1986/2015 & conn.cases -:19:- consideration the aforesaid facts, the impugned notification was issued only for the purpose of filling up 4 anticipated vacancies which alone were anticipated at the relevant time to fill up 4 posts which may arise in future. The necessity for issuing such a notification was on the basis that 18 directly appointed District Judges were functioning in the State at the relevant time. Only 6 posts were lying vacant and one more vacancy would arise during the year due to retirement on account of superannuation on 31/5/2014. Therefore, during the year 2014, the total number of vacancies which were to be filled up by direct recruitment was 7. The 7 vacancies were to be kept vacant to fill up the NCA vacancies pertaining to previous selections exclusively from SIUC Nadar, OBC, Scheduled Tribe, Muslim, Scheduled Caste converts to Christianity, Dheevara and ETB (Ezhava Thiyya and Billawas). Therefore, in the year 2014, no other vacancies could be expected in the regular line to be notified for general vacancies. There was a possibility of elevation of 4 District Judges to the High Court and it is in the said circumstances that 4 vacancies were notified as anticipated.
19. In so far as the said 4 vacancies had already been filled WA No.1986/2015 & conn.cases -:20:- up after recruitment, it is apparent that the select list has exhausted and there were no other substantive vacancies in the permanent cadre to be filled up.
20. Learned counsel for the petitioners had relied upon the judgment in Malik Mazhar Sultan (supra). That was a case in which certain general directions were issued for filling vacancies that may arise in the Subordinate Courts and District Courts. As far as our State is concerned, we have a set of rules which governs the issue and therefore, reference to the judgment may not be required. If it is found that the appointments were to be made from among 146 posts, the issue would have been different. Such a question does not arise in the present case on account of our finding that the appointments have to be made against permanent cadre and when it was 99 at the relevant time, a different view cannot be taken. Of course in Rakhi Ray (supra), it was held that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India which would become a nullity, inexecutable and unenforceable in law. It is contended on behalf of the appellants that as far as Rakhi Ray WA No.1986/2015 & conn.cases -:21:- (supra) is concerned, the appointments were made in view of the provisions of Delhi Higher Judicial Service Rules, 1970, where the Rules provided for advertisement of vacancies after it being determined. Therefore, it was held that the question of taking into consideration anticipated vacancies as per judgment in Malik Mazhar Sultan (supra) does not arise. Both sides relied upon the above judgment. The crux of the above judgment is that when Special Rules provide for the method of recruitment, there is no reason to rely upon the general directions issued in Malik Mazhar Sultan (supra). According to the appellants, in the absence of any Special Rules in regard to the manner in which advertisements are to be released, the directions issued in Malik Mazhar Sultan (supra) has to be applied whereas the argument of the respondents is that when the appointment by direct recruitment can be made only in respect of 25% of the cadre strength, the vacancies that had arisen during the pendency of the select list cannot be applied in the light of the judgment in Rakhi Ray (supra). We do not think it necessary for us to adjudicate on such a controversy, on account of our finding that the permanent cadre strength at the time of notification was only WA No.1986/2015 & conn.cases -:22:- 99 which was enhanced to 130 only by the Government Order dated 29/5/2015, which is now quashed by the learned single Judge. Further, learned Single Judge had, placing reliance upon the judgments of the Apex Court in Rakhi Ray (supra), Arup Das and others v. State of Assam and Others [(2012) 5 SCC 559] and K.Lakshmi v. State of Kerala and Others [(2012) 4 SCC 115] held that vacancies could not be filled up over and above the number of vacancies advertised as the recruitment of the candidates in excess of the notified vacancies would amount to denial of equal opportunity to eligible candidates and would be violative of Articles 14 and 16(1) of the Constitution of India. In this case, the High Court is categoric in the submission that the advertisement had been issued only for four anticipated vacancies proceeding on the basis that the sanctioned strength in the permanent cadre was only 99. In such circumstances, no error has been committed by the learned Single Judge in coming to the conclusion that the impugned notification does not suffer from any vires.
21. On an overall consideration of the legal and factual aspects, we find that the learned Single Judge had not committed WA No.1986/2015 & conn.cases -:23:- any error in dismissing the writ petitions. No grounds are made out for interference.
Appeals are dismissed.
Sd/-
A.M. SHAFFIQUE, JUDGE Sd/-
K.RAMAKRISHNAN, JUDGE Rp //True Copy// P.S to Judge