Gujarat High Court
Randhirsinh vs Hindustan on 22 September, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/12272/2010 19/ 19 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12272 of 2010
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RANDHIRSINH
JASVANTSINH BHATI - Petitioner(s)
Versus
HINDUSTAN
PETROLEUM CORPORATION LTD & 2 - Respondent(s)
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Appearance
:
MR
PERCY KAVINA WITH MR DEVANG VYAS
for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/09/2010
ORAL
ORDER
1. Heard learned Senior Advocate Mr.Percy Kavina with learned advocate Mr.Devang Vyas on behalf of petitioner.
2. In present petition, petitioner has challenged order dated 6.9.2010 passed by respondent Nos.1 and 2 in review application of petitioner.
3. Learned Senior Advocate Mr.Kavina submitted this review application is required to be decided by Bombay authority as per letter dated 11.12.2009 incorporated by this Court in order dated 8.7.2010 in SCA No.7556 of 2010. He also submitted that it was directed to Director of Marketing by Director (Marketing) Govt. of India, Ministry of Petroleum and Natural Gas to consider request made by petitioner against cancellation of candidature and his empanelment for above mentioned LPG location. Therefore, review petition was preferred by petitioner on 7.12.2009 and he also personally appeared before Joint Secretary (Marketing) and explained the facts relating to his experience. Therefore, decision which has been taken by DGM (LPG) NWZ having no jurisdiction or being unauthorizedly exercising power while rejecting review application preferred by petitioner.
4. I have considered aforesaid contention made by learned Senior Advocate Mr.Kavina. It is necessary to note that when review petition was heard by respondent authorities in Zonal Office, Karakka Building, Ashram Road, Ahmedabad , at that occasion, no such contention has been raised by petitioner before authority that this review petition is required to be decided by Bombay people as per letter dated 11.12.2009 as referred above. Therefore, now this contention cannot be permitted to be raised before this Court first time which was not raised before reviewing authority.
5. The contention raised by learned Senior Advocate Mr.Kavina is that hearing of review petition filed by petitioner is contrary to letter dated 11.12.2009 cannot be accepted simply on the ground that as and when petitioner was called by Ahmedabad office by letter dated 23.7.2010 but, he requested for some time by an application dated 4.8.2010 and thereafter, matter was fixed and re-scheduled on 18.8.2010 and thereafter, matter was heard by Zonal Office, Ahmedabad when petitioner was personally present before Senior Regional Manager, Gandhinagar (Retail) of HPCL. The copy of minutes of hearing dated 18.10.2010 is also attached with order passed by reviewing authority. At that time, no objection raised by petitioner. Therefore, this contention cannot be accepted and hence, rejected.
6. Learned Senior Advocate Mr.Kavina also raised two contentions before this Court; one is in respect to income and another is in respect to experience. He also referred to Page-61 where certificate has been given by Chartered Accountant dated 4.1.2010 in favour of present petitioner which was subsequent to the application form made by petitioner. Similarly, experience certificate dated 10.12.2009 which is at page-32 which suggests that whatever record of co-operative society or institution is considered to be a correct document. Therefore, decision which has been taken by reviewing authority that certificate is wrong because date in experience certificate has been wrongly mentioned as '15.1.2000'. But in fact, according to petitioner, correct date of certificate is '29.10.2007'. He also submitted that in respect to page-33, a certificate given by Ex-Administrator that petitioner was in service as an employee of Mandli for the period from 1.11.1998 to 31.12.1999 as an non-salary employee means petitioner was not receiving salary for aforesaid period from Mandli. He also submitted that reviewing authority has not examined the real fact / merits whether petitioner having actual experience or not, that aspect has been totally ignored by respondent authorities. The certificate issued by society it is found from the resolution book of society which has not been checked for coming to conclusion that claim made by petitioner is found to be false or there is no positive finding given by respondent that certificate is not genuine but false certificate. In respect to income, learned Senior Advocate Mr.Kavina has relied upon page-36 which certificate was given by Mamlatdar, Bhiloda where whatever the income shown in certificate which are attached to letter dated 24.8.2009 is found to be correct. But what income, that fact is not mentioned in aforesaid letter dated 26.8.2009 (Page-36). Learned Senior Advocate Mr.Kavina also emphasized that facts which are irrelevant have been considered against petitioner and authority has mis-read documents which are relied upon by petitioner and completely ignored administrative letter and record of co-operative society which is to be considered as final, same has not been considered and therefore, it amounts to mis-interpretation of relevant documents and relevant material which has not been properly appreciated and considered by respondent authorities. Therefore, finding which has been given by respondent authorities is baseless and perverse and contrary to record. Therefore, according to his submissions, interference is required by this Court because review petition is not properly examined by respondent authorities.
7. I have considered submissions made by learned Senior Advocate Mr.Kavina and also perused order passed by respondent authorities dated 6.9.2010 (Page-19 to 24) and also perused the relevant record which is annexed to present petition. The respondent authorities has rightly considered the question as to whether on the date of application made by petitioner i.e. 29.10.2007, whatever details have been given and documents supplied by petitioner in respect to experience and income, are correct or not and whether it amounts to giving wrong information / mis-representation and suppression of facts made by petitioner while giving application for LPG distributorship. In respect to income, Mamlatdar, Bhiloda by letter dated 27.8.2009 confirmed that income from agriculture of petitioner was Rs.2.5 lacs, Rs.50,000/- from milk products and 2 lacs from practice as advocate. Therefore, during verification it has been found by respondent that petitioner has given false income and income of petitioner of Rs. 5 lacs is not only through the source of agriculture. In reply given by petitioner dated 9.11.2009 (Annexure-7), according to petitioner, his income is Rs.5,00,093/- from the agriculture income and Rs.80,985/- as income from business and profession. Therefore, petitioner has given false declaration in respect to income. The petitioner has relied upon total 10 documents in support of review application dated 7.12.2009 which has been considered by respondent authorities and thereafter, it has been decided on the basis of documents which are produced by petitioner and found from record and come to conclusion that in respect to experience and income, whatever material has been placed on record by petitioner at the relevant time when the application was made, that has been found to be false, incorrect and not genuine because relevance is that on the date of filing application, whatever material / details and documents produced by petitioner are only required to be considered while deciding review application. Subsequently, documents in support of say of petitioner is produced, that documents are considered to be totally irrelevant and not required to be considered because these documents have been produced on record subsequent to the application made by petitioner and after cancellation of candidature of petitioner. This aspect in detail considered by respondent authorities and therefore, by letter dated 21.11.2009 cancellation of candidature of petitioner is found to be correct by respondent authorities while deciding review application dated 7.12.2009 and heard on 18.8.2010.
8. In light of this background, finding which has been given in respect to 10 annexures submitted by petitioner on 18.8.2010 in support of review application dated 7.12.2009 which reasoning are quoted as under :
1) EXPERIENCE CERTIFICATE PRODUCED BY PETITIONER A) We find that under column no 12 of the application dated 29.10.2007, you have stated that you had worked in the Sarvodaya Piyat Sahkari Mandali Ltd Ransan Teh:Idar, Dist:Sabarkantha for the period 1.11.1998 to 31.12.1999. You have also attached the Experience Certificate dated 15.1.2000 issued by the Shri Himmat Singh Bhatti as Chairman of the society. This Experience Certificate dated 15.1.2000 was submitted by you together with Dealer Selection application and you have claimed that you were working in the Sarvodaya Piyat Sahkari Mandali Ltd Ranasan Teh:Idar, Dist:Sabarkantha as Supervisor for the period 1.11.1998 to 31.12.1999 for sale of fertilizer/insecticide or agriculture produce. Vide letter dated. 24.8.2009, the District Registrar, Co-op Societies, Himatnagar confirmed that during the period when the experience certificate was shown as issued, there was no Chairman of the said society. In fact, admittedly, during the period 1.6.99 to 30.4.2001, the Society was under administration of the Administrator appointed by the Registrar of Co-op Societies. When we have issued Show Cause Notice bearing GLR:AS;LPG dated 22/9/2009 interalia pointing out the above, vide reply dated 9/11/2009, you have taken the stand that there appears to be typographical error in the date of experience certificate and you have claimed that the Experience Certificate was issued on 27/10/2007 by the Society and without verifying the date on the certificate, the same was enclosed together with the Dealership Selection Application. However, in your Review Application dated 7/12/2009, you have taken the stand that by typographical error, the date in the experience certificate was mentioned as 15/1/2000 instead of 27/10/2007. Thus, we find that there is total change in the date of experience certificate. The above said averment of mistake in the date of experience certificate confirms that you are making repeated futile attempts to circumvent the false experience certificate submitted by you showing the date as 15.1.2000 and which issued by chairman of the Society. In fact, as on 15/1/2000 the Society was under the control of the Administrator.
B) As per the Experience Certificate dated 15.1.2000, you were working in the Sarvodaya Piyat Sahkari Mandali Ltd Ranasan Teh:Idar, Dist:Sabarkantha as Supervisor for the period 1.11.1998 to 31.12.1999 for sale of fertilizer/insecticide or agricultural produce. As already stated admittedly, during the period 1.6.99 to 30.4.2001, the Society was under administration of the Administration appointed by the Registrar of Co-op Societies. Vide letter dated 24.8.2009 issued by the Dist. Registrar confirms that as per the Statement of Accounts of the Society, the Society has not carried out any activity relating to sales or purchase of fertilizers/insecticides or agricultural produce. The said letter 24.8.2009 also confirms that there is no record about the presence of your duties at the society as salaried or non-salaried employee of the society. Thus, your claim that you have worked during the period 1/11/98 to 31/12/99 (at least during the Period of Administration i.e. 1/6/99 to 31/12/99) and obtained experience in direct sale/home delivered product etc are false.
C) As per the Dealership Selection Guidelines for the purpose of getting the marks under the head of Experience the candidate should have salary slip to support the Experience certificate. You have stated and declared in Dealership Selection Application that you have worked during the period 1/11/98 to 31/12/99 in direct sale/home delivered products. Together with Dealership Selection Application dated 29/10/2007, you have also submitted Appointment letter dated 15/10/98 issued by the Society, interlia stating the salary of Rs.1500/- per month. When Show Cause Notice letter bearing no.GLR/AS/LPG dated 22/9/2009 was issued to you, in order to circumvent the false declaration, you have taken the contrary stand vide your reply dated 9/11/09 and Review Application that 7/12/2009 that you have worked as honorary/voluntarily basis in the Society.
Thus, it has come out clearly that you have provided false Experience Certificate together with Dealership Selection Application stating that you have worked as Supervisor of the Society for the period 1/11/98 to 31/12/1999 for sale of fertilizer/insecticide or agricultural produce.
B) INCOME CERTIFICATE:-
As per your the Column No.14 and Annx (duly notorised, stamped and signed) of your application dated 29.10.2007, you have stated total income for year 2006-07 as 5 Lakhs.
During the personal hearing held on 18/8/10, under Annex. 7 of your letter dated 18/8/10, you have produced documents in respect of your income for the financial year 2006/07. Though for the subject Dealership Selection, the applicable financial year was 2006/07, you have produced Income Certificate dated 4/1/2010 from M/s K.K.Patel and Associates, Chartered Accountants, Himatnagar for the period ended 31/3/2007, Income tax return submitted in Jan 2010 in respect of financial year 2006/07. Thus, we find that these certificates are originated much after the cancellation of the candidature/empanelment vide letter dated 21/11/2009.
As given in our letter bearing no. GLR:AS:LPG dated 21/11/2009, vide letter dated 21.8.2009, we have requested for the relevant details from Mamlatdar Nagrik Seva Kendra, Bhiloda attaching the income certificate issued by the Naib Mamlatdar, Bhiloda. Vide letter dated 27.8.2009 the Mamlatdar, Bhiloda confirmed that you have income from Agriculture is Rs.2.5 Lakhs, Rs.50,000 from Milk products and 2 Lakhs from practice as Advocate. Hence, during the verification it has been found that you have given false income and your income of Rs.5 Lakhs is not only through the source of Agriculture.
In your reply dated 9.11.2009 (under Annex. 7) you have stated that your income is Rs.5,00,930/- from the agricultural Income and Rs.80985/- as income from business and profession. We find that the income from business and profession for Rs.80985/- is not shown at the time of application. Thus, on this count also you have given false income declaration.
Our review of the documents and facts reconfirms that you given false statement/declaration in the application and submitted false affidavit in respect of your annual income.
View above, on examination of your Review Application dated 7/12/2009, Application dated 18/8/10 and annexures thereof and all other relevant documents, we find that there is no reason to deviate from earlier finding and cancellation of candidature and empanelment of candidature of you, vide letter bearing no.GLR:AS:LPG dated 21/11/2009. It is reconfirmed that that you have submitted false documents and submitted false declarations in your above said application dated 29.10.2007 in respect of experience and income for the LPG Dealership at Bhiloda. Under Sr. No 16 and 17 of the Dealer Selection application dated 29-10-2007, you have given an undertaking that any wrong information/misrepresentation/suppression of facts would make you ineligible for the LPG distributorship.
Under above facts and circumstances, we find that cancellation of your candidature and empanelment vide letter bearing no.GLR/AS/LPG dated 21/11/2009 stands valid.
9. I have considered reasoning given by respondent authorities and also considered correct details and documents which were not supplied by petitioner at the time when application dated 29.10.2007 was made to respondent. In such circumstances, an identical question has been examined recently by Apex Court in case of Smt.Monika Gupta v. Union of India & Others. Reported in 2010 AIR SCW 4296 where lady has been considered for appointment of LPG distributorship and selection made by authority on the basis of brochure providing that details given with application along with application alone would be considered and at the relevant time, respondent did not annex any document along with application form to show that land was available for godown or showroom necessary for operating LPG distributorship. The documents submitted subsequently showing purchase of land by her must have to be ignored and it has been held that selection committee did not commit any error by awarding 'zero' marks to her under heading 'capability to provide land and infrastructure of godown and showroom'. The relevant observations of aforesaid decision are in Para.10, 11, 12 and 17 which are quoted as under :
10. We have considered the respective submissions and carefully scanned the records including the files made available by the learned Solicitor General, which contain the applications and documents of the appellant and respondent No.4.
11. Paragraphs 8 and 13 of the brochure issued by respondent No.2, which have bearing on the decision of this appeal are as under:
8.
CONSTRUCTION OF GODOWN/SHOWROOM ON THE SITE AS MENTIONED IN APPLICATION FORM The applicant who readily has suitable godown/land for construction of godown for storage filled LPG cylinders and LPG cylinders and shop/land for construction of shop for HP GAS showroom for setting up of HP GAS Distributorship or have a firm commitment from the land owner for purchase/lease or can arrange it are awarded marks. The details given along with the application alone will be considered for this purpose and the applicant will not be given any opportunity to offer any other land subsequently even at the time of interview. For this purpose, the land owned by the family applicant subject to attaching the consent of the concerned family members. LPG will decide the suitability of the land on the basis of the documents submitted along with the application. However, after selection of the applicant, physical verification of the godown land/godown as well as the showroom will be undertaken. In the event it is found that there is variance in the details submitted with the application form and or the plot is not found suitable for construction of godown or the godown is not approved by CCOE the allotment of the distributorship will stand automatically cancelled.
If an applicant, after selection of the above basis, is unable to available make godown duly approved by the Chief Controller of Explosives on the land/godown indicated in the application and/or showroom as per the oil company s standard layout on the land/shop indicated in the application, then the allotment of HP GAS Distributorship made to the applicant will automatically stand cancelled.
13. NORMS FOR EVALUATING THE CANDIDATES The LPG distributor will be selected on the basis of evaluation of all eligible applicants on the following parameters.
a) Capability to provide infrastructure* 35 marks
b) Capability to provide finance* 35 marks
c) Educational qualifications** 15 marks d. Age** 4 marks e.
Experience 4 marks
f.
Business ability/acumen 5 marks
g.
Personality** 2 marks
Total
marks 100
The
evaluation on the parameters a to d above will be done on the basis of the information given in the application. The evaluation on the parameter e, e and g will be done based on the interview.
12. We shall decide this appeal by assuming that the applications of all the candidates had been received by the competent authority before the last date because it is not the case of either party that the applications were submitted by the candidates after the last date fixed for receipt thereof I.e. 9.3.2004. In clauses (a) and (b) of paragraph 17 of the application form, the candidates were required to indicate in yes/no, the availability of land/plot for godown and the showroom. While the appellant had scored out `No in both the clauses and thereby indicated that land was available for godown and she also had a showroom, respondent No.4 did not score out `Yes or `No . This is sufficient to give rise to a presumption that the date on which respondent No.4 is said to have submitted the application, she did not have land for godown or showroom. It is borne out from the files produced by the learned Solicitor General that along with her application form, the appellant had annexed various documents showing her financial status and copies of the sale deeds and site plans showing the availability of land for godown and showroom. As against this, respondent No.4 did not annex any document along with the application form to show that land was available for godown or showroom. Later on, she is said to have submitted two affidavits which are shown to have been notarized on 8.3.2004. The stamp papers on which the affidavits were prepared bear the dates of purchase as 4.3.2004 and 5.3.2004. One of these affidavits is of respondent No.4 herself. The other is the affidavit of Ramnath son of Shri Janki Singh Yadav resident of Jaisinghpur, Tehsil Kayamganj, District Farrukhabad, who is said to have agreed to provide his shop for the purpose of showroom to respondent No.4 in case she was selected for LPG distributorship. The file of respondent No.4 also contains photostat copy of the sale deed executed by Shri Shivnath Singh son of late Shri Makrant Singh, resident of village Bhatasa Pargana Shamshabad, West Tehsil Kayamganj, in favour of Rajesh Kumar Gangwar (husband of respondent No.4). The sale deed is shown to have been presented before Sub-Registrar, Kayamganj between 2 to 3 p.m. on 9.3.2004 and was registered on the same day. However, the two affidavits and the photostat copy of the sale deed do not contain any endorsement showing the date of receipt.
17. From the above analysis of the application forms and documents filed by respondent No.4, it is clear that the Selection Committee did not commit any error by awarding `zero' marks to her under the heading "Capability to provide land and infrastructure for godown and showroom". As a corollary, we hold that the decision of respondent No.3 to cancel the panel/merit list on the ground that the Selection Committee had erred in not awarding 30 marks to respondent No.4 under the heading `infrastructure' was legally unsustainable. Unfortunately, the Division Bench of the High Court failed to notice that in para 17 of the application form, respondent No.4 had not indicated the availability of land for godown and/or showroom and that in view of the language of para 8 of the brochure, the Selection Committee had no option but to ignore affidavit dated 8.3.2004 of Ramnath son of Shri Janki Singh and copy of sale deed dated 9.3.2004 executed by Shri Shivnath Singh in favour of Shri Rajesh Kumar Gangwar (husband of respondent No.4) for the purpose of awarding marks. We have no doubt that if the Division Bench had summoned the relevant records and perused the same, it would have discovered that the application of respondent No.4 was laconic in material respects and the Selection Committee had rightly awarded zero marks to her under the heading `infrastructure'. In any case, we are convinced that respondent No.3 committed serious error by recording a finding that respondent No.4 was entitled to 30 marks under the heading `infrastructure'.
10. In view of aforesaid law laid down by Supreme Court and while considering reasoning given by respondent reviewing authority, the facts which comes on record that initial details and documents which have been supplied by petitioner is found to be incorrect and whatever subsequent material and documents produced by petitioner, has been rightly not considered by respondent authorities because it is irrelevant which were not attached to original application dated 29.10.2007 made by petitioner. Therefore, subsequent documents which have been relied by petitioner cannot be considered and on that basis, details and documents which have been supplied in original dealer selection application dated 29.10.2007, Sr. Nos.16 and 17, an undertaking which has been given to the effect that petitioner will not supply wrong information/mis-representation/ suppression of facts which would make him ineligble for LPG distributorship. Therefore, respondent authorities has rightly come to conclusion while deciding review application that documents which are produced on record on 18.8.2010 and facts are confirms that petitioner has given false statement / declaration in the application and also submitted false affidavit in respect to annual income. Similarly, in respect to experience also, considering experience certificate together with dealership selection application where petitioner has stated that he had worked as a supervisor of society for the period from 1.11.1998 to 31.12.1999 for sale of fertilizer insecticides or agriculture produce is found to be false after proper scrutiny by respondent authorities. Therefore, in respect to experience, a contradictory stand taken by petitioner before respondent authorities which ultimately come to conclusion that petitioner has given wrong information / mis-representation / suppression of fact supplied to respondents at the time when application for dealer selection made on 29.10.2007 which is found to be contrary to undertaking given at Sr. Nos.16 and 17 of dealer selection application. Therefore, contentions raised by learned Senior Advocate Mr.Kavina cannot be accepted. The finding of fact which has been found from record by respondent authorities is considered to be a legal and valid finding, based on record and it cannot be said that finding given by respondent authorities is baseless and perverse. This Court is having limited jurisdiction to interfere with such administrative order because this Court has to examine only decision making process and not the decision.
11. The view taken by Apex Court in case of Union of India and Anr. v. K.G.Soni, reported in (2006) 6 SCC 794 in Para.13 and 14, which is quoted as under :
13. In Union of India and Anr. v. G. Ganayutham (1997 [7] SCC 463), this Court summed up the position relating to proportionality in paragraphs 31 and 32, which read as follows:
31. The current position of proportionality in administrative law in England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator.
This is the Wednesbury (1948 1 KB 223) test.
(2) The court would not interfere with the administrator s decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU (1985 AC 374) principles.
(3)(a) As per Bugdaycay (1987 AC 514), Brind (1991 (1) AC 696) and Smith (1996 (1) All ER 257) as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of proportionality and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article
14.
14. The common thread running through in all these decisions is that the Court should not interfere with the administrator s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury s case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
12. Therefore, looking to entire reasoning given by reviewing authority in order dated 6.9.2010, according to my opinion, respondent authorities has not committed any error which requires interference by this Court. Therefore, the order passed by respondent authorities cannot be considered to be arbitrary, unreasonable and violative of Article 14 of the Constitution of India. Hence, there is no substance in present petition. Accordingly, present petition is dismissed.
(H.K.RATHOD,J.) (vipul) Top