Gujarat High Court
B.P. Hadia (Deceased) vs State Of Gujarat on 5 March, 2024
NEUTRAL CITATION
C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7184 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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B.P. HADIA (DECEASED) & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR J I ANTANI(5784) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4
MS DHARITRI PANCHOLI AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 05/03/2024
ORAL JUDGMENT
1. The petitioner has preferred present petition under Articles 14 and 16 of the Constitution of India and Page 1 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined challenged impugned letter of the respondent dated 24.4.2007, seeking below mentioned relief/s:-
"12(A) Quashing and setting aside the letter of respondent dated 24.4.2007 and directing the respondents that as per new G.C.S.R. (Pension (rule 2002 rule 37 (1) to add 10 years notional service to the pensionable service of the petitioner and to revise his pensionary benefits and to pay the arrears with 10% interest.
12(B) Alternatively the respondent no-1 directed to rectify the mistake of G.C.S.R. rule 2002(pension) directed to add in the list below rule 37(1) in favour of the officers of charity organisation including petitioner for notional benefit of 10 years as it is maximum benefits of notional pension, and mean while directing the Respondents to add five years notional service to the pensionable service of the petitioner and to revise his pensionary benefits and to pay the arrears with 10% interest.
(C) directing the Respondents to grant interest at the rate of 10% on the amounts of pension, gratuity and commuted pension from 1.12.2005 to 20.2.2008 to the petitioner.
(D) During the pendency and final disposal of this petition, the Respondents may be directed to re-fix the pensionary benefits of the petitioner by adding five years notional pensionable service.
(E) to grant such other and further relief's as may be deemed fit."Page 2 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024
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2. The facts giving rise to present petition are that the petitioner was initially appointed as Assistant Charity Commissioner on 1.12.1982 and thereafter, promoted to the post of Deputy Charity Commissioner on 13.8.1999. Thereafter, he was directly appointed to the post of Joint Charity Commissioner from 24.6.2003 till his retirement on 30.11.2005 on superannuation.
2.1 At the time of retirement, a controversy arose whether the petitioner is entitled to count five years service notionally as per Rule 284 of the Bombay Civil Services Rules for calculating the pensionable service or not. Ultimately, by letter dated 24.4.2007, the State Government decided that the petitioner was not entitled to notional five years of service as per Rule 37 of the Gujarat Civil Services (Pension) Rules 2002. 2.2 Hence, the petitioner has challenged the above action on the part of the Respondents as being illegal unreasonable and in violation of fundamental rights under Articles 14 and 16 of the Constitution of India. Page 3 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024
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3. I have heard Mr. J.I. Antani, learned Counsel for the petitioner and Ms. Dharitri Pancholi, learned Assistant Government Pleader for respondent Nos. 1 and 2.
4. Mr.J.I. Antani, learned Counsel for the petitioner has submitted that during pendency of present petition, the petitioner has passed away and his legal heirs are joined as party petitioners to the proceedings. 4.1 Mr. J.I. Antani, learned Counsel for the petitioner has submitted that the petitioner has completed almost 22 years and 11 months of service and considering the qualifying service, as per Old Rule 284 of the Bombay Civil Services Rules ("B.C.S.R." for short), the notional period is to be counted, at the time of calculating the total month of service of 33 years, for full pensionable service. Mr. J.I. Antani, learned Counsel for the petitioner has further submitted the petitioner is entitled to get the benefits under Old Rule 284 of B.C.S.R.. The said Old Rule 284 of B.C.S.R reads as under:-
"284. (a). The scales of pensions prescribed by rule 282 are applicable to the superannuation pensions of all Page 4 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined government servants subject to these rules.
(b). An addition may be made for the purpose of calculating superannuation pension to the duty performed in the following cases.
(i). A government servant who entered government service on or before the 3rd August, 1931 and has no break in his service since that date and whose what pensionable service has been rendered in one or other of the posts and services included in Appendix XI may add to the duty counting for pension, if that duty is not less than 9 years, 4/5 ths of the period by his age on first appointment to such post or service exceeded 25 years provided the addition so made shall not exceed four years.
Note: See clause (J) in Rule 245.
Exception: The concession above is admissible to a Government servant whose whole pensionable service has been rendered in a post or service mentioned below even though he may have entered service after the 3 ^ m August 1931:-
1. Assistant Judge
2. Magistrates for the city of Ahmedabad (including the Chief Magistrate).
3. Judges of Small Causes court, Ahmedabad, including the Chief Judge.
4. District and Sessions Judge.
5. Civil Judges, Senior and Junior Division, and the Resident Magistrates directly recruited from the Bar.
6. President and Members of the Industrial Courts.
7. Adjudicators and Members of Industrial Tribunals.
Note: Items 6 and 7 above will take effect from 31st March 1960.
(ii). A person who has been appointed, direct to the post of Administrator General and Official Trustee or of Chief Judge Small Causes Court, Bombay or of Chief Page 5 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined Presidency Magistrate, Bombay, may, if the duty counting for pension is not less than nine years add to it four-fifths of the period by which age on appointment exceeded twenty-five years subject to a maximum addition of eight years.
(iii). The concession admissible under the above Rule should be extended to the Judges of the Ahmedabad City Civil court, including the Principal Judge, who are appointed directly from the Bar.
Such of the judges referred to above as are governed by the Revised Pension Rules should, if the qualifying service counting for pension is not less than ten years, be allowed to add to their service the number of years by which their age on appointment exceeded twenty-five years, subject to a maximum addition of ten years. Note 1:In case of Civil Judge of the Junior Division the term "age on appointment" shall be taken to mean his age at the time of continuous appointment, and such period of non-continuous duty counting for pension under Note 2 to Rule 249 as may be recovered by it, be deducted from the period to be added under this rule. Note 2 The concessions mentioned in sub-clauses (i) and
(ii) of clause (b) of this rule are alternative i.e. a Government servant to whom the provisions of both the sub-clauses apply may be allowed the benefit of the concession admissible under one of the two sub-clauses but not under both.
Note 3: In the case of holders of the posts of Presidency Magistrate (including Chief Presidency Magistrate) Judge of the Court of Small Causes, Bombay (including Chief Judge) and Admiinistrator General and Official Trustee, subsequent promotion to a post, other than the posts mentioned above, which is of a similar nature and carries not less pay, does not deprive the officer concerned of the concession given by sub-clause(i) or by sub-clause (ii), as the case may be, of this rule if he has performed not less than four and half years of duty in Page 6 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined one or more of the posts referred to above." 4.2 Mr. J.I. Antani, learned Counsel for the petitioner has submitted that as per amended Rule 37(viii) of the Gujarat Civil Services (Pension) Rules, 2002 ("G.C.S.R." for short), the post of Administrative General and Official Trustee is mentioned at clause-(viii) and as the petitioner had worked as Administrative General and Official Trustee, the case of the petitioner requires to be considered for the notional benefits for further qualifying service of 10 years. He has further submitted that in that view of the matter the petitioner's total length of service requires to be counted as 33 years instead of 22 years and 11 months as per amended Rule 37(viii) of the G.C.S.R and therefore, petitioner is entitled for the full pension after completion of 33 years of his service. Mr. J.I. Antani, learned Counsel for the petitioner has also submitted that as the similarly situated persons have received benefits with regard to the notional period of qualifying service by adding 10 years of service while calculating case of the pension and therefore, the Page 7 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined petitioner is also entitled for the similar treatment. Mr. J.I. Antani, learned Counsel for the petitioner has submitted that the pension of the petitioner was paid after period of three years of his actual date of retirement and therefore, the petitioner is also entitled for interest on the late payment of the retiral benefits. 4.3 Mr. J.I. Antani, learned Counsel for the petitioner has referred to Gujarat Civil Services (Pension) Rules 2002, more particularly amended Rule 37. Mr. J.I. Antani, learned Counsel for the petitioner has also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Dr. G. Sadasivan Nair vs. Cochin University of Science and Technology reported in AIR 2022 SC 73, and more particularly upon paragraph Nos. 24 and 26 which read as under:-
"24. The fact that the appellant was appointed to the post of lecturer in the School of Legal Studies of the respondent University with effect from 7th September 1984, is not in dispute. The appellant practised as an Advocate at the District Court and Subordinate Courts at North Parur, Ernakulam, Kerala for the period between 11th March 1972 and 2nd February 1980. The appellant sought for reckoning of his experience at the Bar as qualifying service for the purpose of determination of superannuation pension, as provided under Rule 25 (a), Page 8 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined Part III, KSR. The same was denied by the authorities of the respondent University. During the pendency of litigation in this regard before the High Court, the appellant retired from service of the respondent University on attaining the age of superannuation with effect from 30th April 2007.
26. The proviso limits the benefit of the Rule by restricting its application only to such employees as are recruited when practicing at the Bar, to those posts requiring a qualification in law and experience at the Bar. The respondent University has contended that since the post of a lecturer to which the appellant was appointed in 1984, did not require prior experience at the Bar, the proviso would be attracted thereby disentitling the appellant of the benefit under Rule 25(a). Although the proviso was inserted by way of an amendment, with effect from 12th February 1985 and was not in force at the time of appointment of the appellant in 1984, the respondent University has contended that the rule applicable in the matter of determination of pension is that which exists at the time of retirement. That the appellant superannuated on 30th April 2007, on which date the proviso to Rule 25(a) was in force and therefore it would apply, limiting the benefit of the Rule."
4.4 In view of the above, learned Counsel for the petitioner has submitted that the petitioner is also similarly situated person to the cited case and therefore, his case requires to be considered in light of the observations made the Hon'ble Apex Court in the said judgment. He has also referred to and relied upon the decision of this Court in case of V.L. Thakore and Page 9 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined another vs. State of Gujarat in Special Civil Application No. 303 of 1983 more particularly paragraph No.4, which reads as under:-
"4. For the recruitment to the post of Judge, Small Causes Court, Ahmedabad by recruitment rules which are styled as Gujarat Judicial Service Recruitment (Amendment) Rules 1979, it is provided that a person being not more than 45 years of age and has practised as an advocate, attorney or pleader for not less than 5 years can be appointed. On the said post of a Judge, Small Causess Court, Civil Judge (J.D.) or a Judicial Magistrate (First Class) are also entitled to be appointed. Thus, so far as age and qualification are concerned, the post of Inspecting Officers (Court Fees) i.e. the petitioners stand on parity with the post of Judge, Small Causes Court. Except petitioner No.3, all the petitioners were serving as judicial officers in judicial service of the respondent before they were selected and appointed as Inspecting Officers (Court Fees). On recommendation of the Legal Department, the petitioner made representation before the Second Pay Commission to treat their cadre at par with the cadre of Judge, Small Causes Court, Ahmedabad more in particular for the purpose of grant of concession of making addition to the pensionable service. The Second Pay Commission in its report did recommend the same keeping in mind the late entry in service after considerable practice as a pleader or as an advocate.
Second Pay Commission has also considered the cadre of District Judges and City Civil Judges, Ahmedabad for this purpose and accordingly the Government accepted the recommendation and added the cadre in the Exception to Clause (i) of Subrule (b) of Rule 284. On the recommendation of the Second Pay Commission, the benefit of the cadre being added in Exception to Clause
(i) of Subrule (b) of rule 284 was extended to the Judges of the Labour Courts, Assistant Charity Commissioner, Additional Charity Commissioner and Joint Charity Commissioner also. Respondent State, however, despite Page 10 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined these facts failed to accept the request of the petitioners to extend the benefit as given to the officers of other cadres referred above. The respondent State failed to met out the treatment as given to other officers of the cadres referred above. The petitioners state that the inaction on the part of the respondents to treat them on par with the officers of other cadres referred above amounts to refusal to accept the request. This amounts to denial of equal treatment to them. Petitioners state that the recruitment rules for the post of Inspecting Officers (Court Fees) is more or less identical with the recruitment rules for the post of a Judge, Small Causes Court, Ahmedabad and another post referred above namely Labour Judge, Assistant Charity Commissioner and Dy. Charity Commissioner. It is stated by the petitioners that practise at law at the bar for a period of minimum five years is a minimum qualification for all the posts. So far as the age is concerned, it is either not more than 40 or 45 in all the cadres referred above. The lateral entry into Service may not make it possible for a candidate for full pension because in any case, the maximum period of service put up by him cannot be more than 18 years, as the superannuation prescribed by the State is 58 years. The petitioners say that despite these facts, though the petitioners are similarly situated so far as qualification and age are concerned, they have been differently treated by not incorporating their cadre in Exception to Clause (i) of Subrule (b) of Rule 284 of B.C.S.Rs to have the benefit of more pension." 4.5 In view of the above observations, learned Counsel for the petitioner has submitted that in the cited judgment, the rules for recruitment to the post of Deputy Charity Commissioner was referred to and relied upon and after considering Old Rule 284 (b)(i) of B.C.S.R, the Court has passed order and therefore, the learned Page 11 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined Counsel for the petitioner urges before this Court that the petitioner is also entitled for the similar benefits which are flowing from the said judgment and his case requires to be considered while considering the notional qualifying service of 10 years, in addition to his actual period of service and he is entitled to get full pension, on completion of 33 years of qualifying service provided under Rule 37 of G.C.S.R..
5. As against that Ms. Dharitri Pancholi, learned Assistant Government Pleader appearing for the respondent State of Gujarat has relied upon an affidavit- in-reply dated 12.12.2018 filed by the respondent and more particularly paragraph Nos. 4 to 7 which reads as under:-
"4. It is submitted that the petitioner being Joint Charity Commissioner of Vadodara Region, was the head of his own office and therefore, it was incumbent upon the petitioner to have prepared his pension case papers and it was the duty of the petitioner to forward his pension case papers to the office of Charity Commissioner Gujarat State. It is a matter of record that the petitioner prepared his own pension case papers and forwarded the same to the office of Charity Commissioner on 10.06.2005. Annexed hereto and marked as ANNEXURE-R-2 is the copy of such communication dated 10.06.2005. Pursuant to forwarding of papers, the Page 12 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined Charity Commissioner vide communication dated 05.07.2005 called upon the petitioner to fulfill the shortcomings of his pension case papers. Annexed hereto and marked as ANNEXURE-R-3 is the copy of such communication dated 05.07.2005. Consequently, the petitioner vide letter dated 22.07.2005 sent necessary details to the Office of Charity Commissioner. Annexed hereto and marked as ANNEXURE-R-4 is the copy of such communication dated 22.07.2005.
5. It is submitted that thereafter again, further correspondences were exchanged between the Office of the Charity Commissioner and the petitioner. The office of Department of Pension and Provident Fund, Gandhinagar, vide letter dated 01.12.2005, informed the petitioner that since, the issue in respect of considering the service of the petitioner as continues service of his probation period as demanded by him was likely to consume further time in fixing his final pension, the Office of Department of Pension and Provident Fund, vide letter dated 01.06.2006, informed the petitioner to submit necessary form to receive provisional pension as per Rules. Annexed hereto and marked as ANNEXURE- R-5 is the copy of such letter dated 01.06.2006. In response to the letter dated 01.06.2006, the petitioner vide letter dated 21.07.2006 did not fill up necessary form for receiving provisional pension asked for documents. Annexed hereto and marked as ANNEXURE-R-6 is the copy of such communication dated 21.07.2006. Further, necessary documents were provided to the petitioner vide letter dated 01.09.2006. It is submitted that vide letter dated 03.01.2007, the Office of Charity Commissioner forwarded pension case papers of the petitioner to the Office of Department of Pension and Provident Fund by RPAD. Annexed hereto and marked as ANNEXURE-R-7 is the copy of such letter dated 03.01.2007.
6. It is stated that once again, by letter dated 25.01.2007, the Office of Department of Pension and Provident Fund called upon the petitioner to do the needful for the fixation and payment of provisional pension as stipulated under Rules 142-143 of the Gujarat Civil Services Rules (Pension). The office of Page 13 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined respondent no. responded to the captioned letter and informed the petitioner vide letter dated 09.02.2007.Copies of both the letters are annexed hereto and marked as ANNEXURE-R-8 Collectively. After series of correspondences, the legal department vide letter dated 24.04.2007, informed the petitioner that his demand to add additional 5 years as notional could not be accepted in view of Rule 37 of the Rules. Annexed hereto and marked as ANNEXURE-R-9 is the copy of such letter dated 24.04.2007. It is submitted that the respondent no. 2 requested the Office of Director of Pension and Provident Fund to approve the pension case of the petitioner. Annexed hereto and marked as ANNEXURE-R-10 is the copy of such letter dated 16.01.2008.
7. It is submitted that vide letter dated 30.01.2008, the Office of Department of Pension and Provident Fund gave final sanction to the pension of petitioner. Thus, it is clear from the record that there was no delay caused by the office of deponent in releasing the amount of arrears of pension, gratuity and commuted pension of the petitioner. The time consumed in fixing the final amount of pension and other benefits was solely due to the demand of the petitioner to include additional 5 years of notional services in receiving the pensionary benefits. Hence, the petitioner is not entitled to the interest as claimed by him."
5.1 Ms. Dharitri Pancholi, learned Assistant Government Pleader for the respondent has submitted that the petitioner was directly appointed on the post of Assistant Charity Commissioner, after clearing the examination and thereafter, he got promotion and again completed his qualifying service of 22 years and 11 months and Page 14 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined therefore he is not entitled to get full pension. She has further submitted that after considering petitioner's total length of service, as he is not falling under relevant rules, his case was not considered for 10 years notional benefits and therefore, he is not entitled for full pension. 5.2 So far as the interest part is concerned, Ms. Dharitri Pancholi, learned Assistant Government Pleader has relied upon affidavit-in-reply dated 17.12.2021 filed by respondent No.2 and submits that the delay was caused on the part of the office of the petitioner in forwarding the papers to the office of the Charity Commissioner and thereafter, to the State Government, and therefore, there was no delay on the part of the respondents in payment of his retiral dues and hence, the respondent is not entitled to pay any interest on the amount which was paid to the petitioner for his retiral dues.
5.3 So far as parity part is concerned, Ms. Dharitri Pancholi, learned Assistant Government Pleader for the Page 15 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined respondents has relied upon an affidavit-in-reply filed on behalf of the respondent dated 12.12.2018 and more particularly paragraph No.8 and submits that the case of the petitioner is not similarly situated to the person with whom petitioner is claiming parity. Learned Assistant Government Pleader has further submitted that the person with whom the petitioner claimed parity was directly come to the bar and joined Government Service i.e. Joint Charity Commissioner and he has served as Joint Charity Commissioner for the period of 15 years 10 months and 25 days and therefore, as per Government Resolution, he has given a benefit of aiding of 5 years as notional in service. She has further submitted that the petitioner had already completed 22 years and 11 months as a Government Servant and therefore, such parity cannot be granted to the petitioner.
5.4 In view of the above, Ms. Dharitri Pancholi, learned Assistant Government Pleader urges before the Court that present petition may not be entertained and the Page 16 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined same may be dismissed.
6. I have perused the relevant materials and papers produced on the record of this petition. I have also considered the submissions made by learned advocates on behalf of the respective parties. Considering the provision of Rule 284 of the B.C.S.R now G.C.S.R, I do not find any discrimination with regard to the calculation considered by the State in case of present petitioner, as alleged by the petitioner.
7. In old Rule 284 of the B.C.S.R. clause (viii) was not referred and the said clause (viii) is referred only in amended new Rule 37 of G.C.S.R., therefore, petitioner cannot claim any benefit on that basis. Even on completion of 25 years of service, the maximum addition of 8 years was provided under the old Rule 284 of the B.C.S.R. and considering the total length of service and in view of the fact that the case of the petitioner does not fall under the said category of clause (viii), the Page 17 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024 NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined respondents have not committed any error or there is no any discrimination while considering the case of the petitioner. After going through the facts of present case, the judgment which is referred to and relied upon by Mr. Antani, learned Counsel for the petitioner in case of Dr. G. Sadasivan Nair (supra), it is clear that the facts of the petitioner's case are different than the facts of the case of the Hon'ble Apex Court. Considering over all aspects and considering the merits of the matters, as the petitioner has completed his qualifying service less than 33 years and as he has prayed the benefits of the notional period of 10 years under New Rule 37 of G.C.S.R, the case of the petitioner does not fall under the category of clause (viii). Even after considering the total length of service 33 years, he is not entitled to get the benefit of notional period of 10 years for complete pension.
8. In view of the aforesaid discussion and observations, present petition does not deserve to be entertained and the same deserves to be dismissed.
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NEUTRAL CITATION C/SCA/7184/2008 JUDGMENT DATED: 05/03/2024 undefined Accordingly, present petition is hereby dismissed. Rule is discharged. Interim relief, if any stands vacated forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 19 of 19 Downloaded on : Fri Mar 22 21:00:24 IST 2024