Bombay High Court
Layout vs Pratima Deodatta Karmarkar on 9 July, 2009
Author: C. L. Pangarkar
Bench: C. L. Pangarkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
WRIT PETITION NO. 1860 OF 2008
WITH
WRIT PETITION NO. 1916 OF 2008
WRIT PETITION NO. 1860 OF 2008
Ashok Laxmanrao Gadge,
aged 53 yrs., Occu. Head Master,
New English High School,
Congress Nagar, Nagpur,
R/o 1153-D, New Nandanwan
Layout, Nagpur. PETITIONER.
VERSUS
1. Pratima Deodatta Karmarkar,
aged 55 yrs., Occu. Vice Principal,
New English High School, Mahal,
Nagpur.
2. Secretary, New English High
School Association, Opposit
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Chitnis Park, Mahal Nagpur.
3. The Education Officer
(Secondary), Zilla Parishad,
Nagpur.
4. The Deputy Director of
Education , State of Maharashtra,
Nagpur Division Nagpur.
5. H. P. Khandait,
aged 50 yrs., Occu. Service,
Head master, New English High
School, Sitabuldi Branch, Nagpur.
(Formal Respondent). RESPONDENTS.
WRIT PETITION NO. 1916 OF 2008.
H. P. Khandait,
aged 50 yrs., Head Master,
New English High School,
Sitabuldi Nagpur.
VERSUS
1. Pratima Deodatta Karmarkar,
aged 55 yrs., Occu. Vice Principal,
New English High School, Mahal,
Nagpur.
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2. Secretary, New English High
School Association, Congress
Nagar, Nagpur.
3. The Education Officer
(Secondary), Zilla Parishad,
Nagpur.
4. The Deputy Director of
Education , State of Maharashtra,
Nagpur Division Zero Miles,
Civil Lines Nagpur.
5. Ashok Gadge,
aged 52 yrs., R/o c/o New English
High School, Congress Nagar, Nagpur.
RESPONDENTS
Shri. M. Sudame, Counsel for the petitioners.
Shri. B. G. Kulkarni, Counsel for the respondents.
CORAM: C. L. PANGARKAR J.
Date: 9th JULY 2009.
ORAL JUDGMENT:
These two Writ Petitions can be disposed of by common judgment since the controversy involved is identical. Both these Writ Petitioners are also directed against the same order of the School Tribunal whereby he has set aside orders of promotions of ::: Downloaded on - 09/06/2013 14:46:01 ::: 4 petitioners.
2. Facts relevant for the purpose of these Writ Petitions are as follows:
Petitioner Ashok Gadge in Writ Petition No. 1860 of 2008 was appointed as a teacher in the respondent no.2 School on 11.08.1981. He possessed qualification B. Sc. B. Ed. on the day he was appointed as Assistant Teacher. He was promoted as Assistant head Master w.e.f. 01.01.1986, subsequently he was promoted to the post of Head Master on 01.04.1988. Petitioner belongs to backward community and as per the policy of the reservation of the Government the petitioner was promoted.
According to petitioner said promotions of petitioner as Head Master has been approved by the Education Officer when the petitioner was promoted to the post of Assistant Head Master and the Head Master. No objection was raised whatsoever by any of the teachers. After lapse of period of 19 years it is alleged that respondent no.1 Pratima Karmarkar made a representation to the Education Officer to promote her to the post of Head Master in ::: Downloaded on - 09/06/2013 14:46:01 ::: 5 place of petitioner. She had contended in the said representation that as per the decision of this Court in Baldev Ade's (2006(6) Maharashtra Law Journal 882) case the reservation in respect of post of Head Master would be available if there are 4 or more posts of Head Master available with the management of the school. The said representation was in fact rejected by the school management as well by Education Officer and feeling aggrieved thereby she preferred an appeal under Section 9 of the Maharashtra Employees of Private Schools Act before the School Ttribunal. She raised the same contentions that since the management runs only three schools no post of Head Master could have been reserved for any backward class community.
According to her she was the senior most teacher and therefore she should have been promoted to the post of Head Master.
3. In the said appeal the petitioner Ashok Gadge as well as the other petitioner H. P. Khandait were also respondents. They contended that they were promoted according to policy of the Government. They also contended that they were promoted in ::: Downloaded on - 09/06/2013 14:46:01 ::: 6 the year 1986 and therefore were in category 'B' while the petitioner continued to work in category 'C' and therefore she could not be said to be senior. They also contended that the judgment in Baldev Ade's case could not be applied retrospectively.
4. Learned Judge of the School Tribunal negatived the contention of the present petitioners and held that respondent No.1 Pratima Karmarkar should have been promoted to the post of Head Master and he directed the management to so promote her. Petitioners therefore feel aggrieved and prefer these two writ petitions.
5. I have heard the learned counsel for the petitioners as well as respondents.
6. Following facts were not disputed before me at the time the arguments were advanced:
::: Downloaded on - 09/06/2013 14:46:01 ::: 71. Respondent No.2 management runs three schools at Nagpur.
2. Three teachers namely two petitioners and Pratima Karmarkar respondent No.1 were trained graduate teachers on the day they were appointed as Assistant Teachers.
3. All the three were appointed against vacant posts.
4. They are permanent employees.
5. Respondent No.1 Pratima Karmarkar was appointed on 01.08.1978, petitioner Ashok was appointed on 11.08.1981 and petitioner Khandait was appointed on 02.08.1982 while the management promoted Ashok Gadge as Assistant Head Master on 04.08.1986 and Khandait on 01.02.1996.
6. Ashok Gadge belongs to Scheduled Caste while Khandait belongs to Nomadic Tribes.
7. All fell in category 'C' of Schedule F on the date of their appointment as well as on the date Ashok Gadge was promoted for the first time and finally;
8. All three schools are recognised and aided schools.::: Downloaded on - 09/06/2013 14:46:01 ::: 8
7. Since it is not disputed that all three schools are recognised schools, the schools and the teachers are governed by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act 1977 as well as Rules framed there under.
In view of the undisputed fact that all the three teachers were appointed in clear vacancy and held requisite qualification on the day they were appointed their appointments were in compliance of provisions of Section 5 of the Maharashtra Employees of Private Schools Act. Seniority list is required to be maintained by the management in accordance with the Rule 12 and Schedule F. Seniority is determined on the basis of date of joining the service.
Since they were appointed in clear vacancy and were graduates and trained graduates on the day they were appointed respondent No.1 Pratima Karmarkar becomes senior most, she having been appointed in 1978 while the petitioners were appointed in 1981 and 1982. This position would certainly continue upto the date petitioner Ashok Gadge was promoted for the first time to the post of Assistant Head Master. It is therefore also clear from this that ::: Downloaded on - 09/06/2013 14:46:01 ::: 9 Pratima Karmarkar is deemed to have been superseded when Ashok Gadge was appointed as Assistant Head Master.
8. It is obvious that the first claim to promotion was that of Pratima Karmarkar-respondent No.1 and the management ignoring the claim had promoted Ashok Gadge in the year 1986 as Assistant Head Master and subsequently as Head Master. It is also clear that she was ignored in the year 1996 when the petitioner H. P. Khandait was promoted.
9. Learned counsel for the petitioners submits that Pratima Karmarkar was in fact superseded in 1986 and 1988 and again in 1996. He submits that she should have challenged the supersession in 1986 itself. He also submits that Section 9 of the Maharashtra Employees of Private Schools Act gives a right to a person to challenge the supersession. Although she was so superseded in 1986, 1988 and 1996 she had chosen to file an appeal in the year 2007 and the appeal can therefore be said to be hopelessly barred by limitation. He submits that the Tribunal ::: Downloaded on - 09/06/2013 14:46:01 ::: 10 therefore ought not to have entertained the appeal itself. It seems that the respondent No.1 Pratima Karmarkar had filed an appeal under Section 9 after her representation was rejected. Learned Judge of the Tribunal has given very cogent reasons why he was entertaining the appeal and why it is not barred by limitation. He rightly observed that after interpretation of Rule 9(10) by the High Court in Baldev Ade's case that a cause can be said to be accrued to her to make a representation and then filing appeal. The reason given by the learned Judge appears to me to be sound and the following observations would make it clear why finding to that effect has to be upheld.
10. In Writ Petition no. 1916 of 2008 seniority list is filed at Annexure I. From the said seniority list we can gather the date of initial appointment, qualifications and date of their acquisition.
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Name Date of Qualification Qualification
Appointment Educational Training
Mrs. Karmarkar 01.08.1978 B.Sc. 1973 B. Ed. 1978
M.Sc.1976
Mr. A. L. Gadge 11.08.1981 B.Sc. 1978 B. Ed. 1981
Mr. H.P.Khandait 02.08.1982 B. Sc. 1980 B. Ed. 1982
If the above chart is seen it is clear that all the teachers were trained graduates on the date they were appointed . All of them fell in Category 'C' itself the day they were appointed. Any teacher who is appointed as Head Master or Assistant Head Master enters category 'B' only after he is so promoted. The management is bound to show Ashok Gadge and H. N. Khandait in Category 'B' upon their promotion. But until their promotion they too fell in category 'C'. Therefore until these promotions were effected Mrs. Karmarkar was certainly senior to them in Category 'C', she having been appointed earlier. For the same reason the contention that she cannot claim promotion to the post of Head Master as she is not even in category 'B' cannot be accepted. Her right to promotion being senior was infringed on the day she was kept back and Ashok Gadge was promoted.
::: Downloaded on - 09/06/2013 14:46:01 ::: 1211. The reason why she was kept back was the interpretation of Rule 9(10) of the M. E. P. S. Rules. The said Rule reads as follows:
Rule 9(10)(a) The Management shall reserve 24 percent of the total number of posts (or vacancies) of Heads and Assistant Heads for the members of Scheduled Castes, Scheduled Castes converts to Buddhism, Scheduled Tribes, Denotified Tribes and Nomadic Tribes as follows, namely:
(i) Scheduled Castes and Scheduled Castes converts to Buddhism 13 per cent
(ii) Scheduled Tribes including those living outside the specified areas 7 per cent
(iii) Denotified Tribes and Nomadic Tribes 4 per cent
(b) In case it is not possible to fill in the post of a Head Or Assistant Head for which a vacancy is reserved for a person belonging to the Castes and Tribes specified in clause (a), the post maybe filled in by promoting a candidate from the other ::: Downloaded on - 09/06/2013 14:46:01 ::: 13 remaining categories in the order specified in clause (a), so however that the percentage of filling up such vacancies does not exceed the limit laid down for each such category.
If candidates belonging to any of these categories are not available, then the vacancy or vacancies-
(i) of the Head may be filled in by promoting any other teacher on the basis of seniority-cum-merit after obtaining previous approval of the Education officer;
(ii) of the Assistant Head shall be kept unfilled for a period of three years unless such vacancy or vacancies could be filled in by promotion of any teachers belonging to such Castes or Tribes becoming available during that period.
Initially said Rule was interpreted to mean that even if there are three posts of Head Master the post of Head Master could be reserved for the teachers falling in reserved category. It was admittedly on the basis of this interpretation that petitioners Gadge and Khandait were promoted ignoring the seniority of Mrs. Karmarkar respondent No.1. Shri Sudame learned counsel for the petitioners submits that the petitioners were rightly promoted.
He submits that petitioner Ashok Gadge was promoted way back ::: Downloaded on - 09/06/2013 14:46:01 ::: 14 in 1986 and after almost 20 years his promotion is sought to be disturbed by filing an appeal before the School Tribunal. His contention is that even if High Court may have now interpreted provisions of Rule 9(10) in New English High School Associates Nagpur and another Vs. Baldev Fakira Ade and another 2006(6) Maharashtra Law Journal 882 that cannot give rise to the filing of an appeal to the School Tribunal saying that respondent No.1 was superseded wrongly. He submits that, that would disturb the petitioners right which he has acquired by holding the said post for the past 20 years. He also submits that if the Supreme Court later takes a different view, is the management once again going to disturb the promotions already made? He submits that there would be no end to this if the law is to be interpreted in this way.
12. If the judgment in Baldev Ade's case is seen it is clear that the said decision does not say that the decision would be prospective or retrospective. Shri Kulkarni learned counsel for the respondent No.1 submits that the law is that unless the Court directs specifically, every decision has a retrospective effect. He ::: Downloaded on - 09/06/2013 14:46:01 ::: 15 contends that the law was already there and what is now done is that it is rightly interpreted. He submits that since the law was in existence on the day promotion was made and it is to be interpreted as interpreted in Baldev's case the promotions of the petitioners as were made were contrary to the provisions of law.
This Court in Baldev Ade's case interpreting 24% reservation observes as under:
"27. Undoubtedly, the Constitution mandates implementation of reservation policy. However, at the same time, it assures opportunities to all the open class category candidates. The implementation of the reservation policy should not lead to absurd result. The application of reservation percentage has to be with reference to the number of posts. It is always to be remembered that the reservation percentage is to be applied and the 50 point roster is to be followed taking into consideration the total number of posts in a cadre and at the same time care has to be taken that other category candidates are not prejudiced in the sense that the statutorily recognised reservation percentage does not exceed which implementing the reservation policy. Undisputedly, the relevant rule requires 24% of reservation out of which 13% for the S. C. 7% for the S. T. and 4% for the D. T./N. T. Considering the 24% reservation, if one ::: Downloaded on - 09/06/2013 14:46:01 ::: 16 applies the 50 point roster, it would result in reservation in excess of the statutorily specified percentage. In a cadre comprising of three posts with 24% reservation rule, if one applies the 50 point roster, then the reservation even in respect of one post would exceed 24% reservation. One third cannot be equated to 24%. it is settled law that the reservation cannot be allowed to exceed the percentage prescribed for reservation as it would result in injustice to the candidates falling outside the reservation category. Considering the same, we are in respectful agreement with the view expressed by the Division Bench in Somsingh's case that 24% reservation can be applicable only in cases where there are minimum of four posts in a cadre and not otherwise.
28. The fall out of the above discussion is that in case the cadre consists of three or less number of posts and the total percentage of reservation is 24%, there cannot be any reservation in such a case and it would be only in case of four posts, that one of those will have to be filled in by the reserved category candidate. The applicability of the reservation policy would depend upon the number of posts in a cadre and the percentage of reservation. The 50 point roster can be made applicable only when the applicability thereof would not result in implementation of reservation policy in excess o9f the percentage statutorily prescribed for the reserved category candidates. The ::: Downloaded on - 09/06/2013 14:46:01 ::: 17 reference and the points formulated above are answered accordingly. The matters now are required to be placed before the regular Bench dealing with the similar matters."
13. In the case at hand management runs only three schools and therefore there are only three posts of the Head Master.
Obviously if the above decision is to be applied none of the posts of the Head Master in the three schools can be said to be reserved.
Promotions of the petitioners were therefore certainly contrary to law. This takes me to consider the decision in Baldev's case if the said decision has retrospective operation or prospective operation . It seems from the various decisions of the Supreme Court that the position of law is well settled that unless the Court in its judgment directs that the judgment shall have prospective effect it must be deemed that it is retrospective in operation . Shri Sudame learned counsel for the petitioners had placed before me in support of his contention that the ruling in Baldev's case had a prospective effect Kailash Chand Sharma Vs. State of Rajasthan And Others (2002)6 Supreme Court Cases 562 and Harshendra ::: Downloaded on - 09/06/2013 14:46:01 ::: 18 Choubisa And Others Vs. State of Rajasthan And Others (2002)6 Supreme Court Cases 393. Shri Kulkarni learned counsel for the respondent had cited to me the following decisions:
Dr. Suresh Chandra Verma and others Vs. The Chancellor Nagpur University and others AIR 1990 Supreme Court 2023, 2. Somaiya Organics India Ltd. And Another Vs. State of U. P. And Another (2001)5 Supreme Court Cases 519; 3. Sarwan Kumar And Another Vs. Madan Lal Aggarwal (2003)4 Supreme Court Cases 147; and 4.
P. V. George And Others Vs. State of Kerala And Others (2007)3 Supreme Court Cases 557.
I think the decision that settles the position of law is reported in (2001)5 Supreme Court Cases 519 since it is a judgment rendered by five Hon'ble Judges of the Supreme Court and the Larger Bench who has dealt with the the subject.
Supreme Court observes as under:
23. Although the doctrine of "prospective overruling" was drawn from American jurisprudence, it has/had, of necessity, to develop indigenous characteristics. The parameters of the ::: Downloaded on - 09/06/2013 14:46:01 ::: 19 power as far as this country is concerned were sought to be laid down in Golak Nath itself when it was said (SCR p. 814 B-D) "As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions:(1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by the highest court of the country, i. e. the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive operations of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it."
26. Again in Union of India V. Mohd.
Ramzan Khan it was held that non furnishing of a copy of the enquiry report to an employee amounted to violation of the principles of natural justice and any disciplinary action taken without furnishing such report was liable to be set aside. However, it was made clear that the decisionwould have prospective application so that no punishment already imposed would be open to challenge on this count. (See also Managing Director, ECIl V. B. Karunakar).
::: Downloaded on - 09/06/2013 14:46:01 ::: 2027. In the ultimate analysis, prospective overruling, despite the terminology, is only a recognition of the principle that the court moulds the relief claimed to meet the justice of the case-justice not in its logical but in its equitable sense. As far as this country is concerned, the power has been expressly conferred by Article 142 of the Constitution which allows this Court to "pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it". In exercise of this power, this Court has often denied the relief claimed despite holding in the claimants' favour in order to do "complete justice".
37. Nevertheless a law enacted without legislative competence remains on the statute book till a court of competent jurisdiction adjudicates thereon and declares it to be void. When the court declares it to be void it is only then that it can be said that it is non est for all purposes. In Synthetics and Chemicals Case the invalidity of the provisions was a declaration under Article 141 of the Constitution. It was for doing complete justice that the court in exercise of its jurisdiction under Article 142 moulded the relief in such a way as to give effect to its declaration prospectively. It is not possible to accept that such an order of prospective overruling is contrary to law. An invalid law has not been held to be valid. All that has happened is that the declaration of invalidity of the legislation was directed to ::: Downloaded on - 09/06/2013 14:46:01 ::: 21 take effect from a future date.
38. The principle of prospective overruling is too well enshrined in out jurisprudence for it be disturbed.
Therefore, by reason of the decision in second Synthetics case what has actually happened is that collection and non collection of vend fee prior to 25-10-1989 is left untouched. However, the Court in second Synthetics case did not specifically deal with the question of deposits made pursuant to interim orders of courts. The word used there was "realisation" . It might have been arguable that the "deposits were not "realisations" in the sense the word has been used in taxation statutes in general and the U. P. Excise Act, 1910 in particular. However, the interim orders passed by the High Court show that deposits were made of vend fee and the purchase tax. Although these "deposits" were to be kept in a separate account, nevertheless in the circumstances of this case, it would be mere sophistry to hold that the monies so deposited were not "realisations" for the purposes of the U. P. Excise Act. Therefore, what was deposited by the appellants with the State would remain with it notwithstanding the interim orders which required the State to keep it in a separate account but at the same time, what has not been collected by the State cannot be realised by it, even in those cases where a bank guarantee has been furnished."
::: Downloaded on - 09/06/2013 14:46:01 ::: 2214. Other decision to which I must make a reference is P. V. George And Others Vs. State of Kerala And Others (2007) 3 Supreme Court Cases 557. I may particularly make a reference to this decision because the decision is in respect of service matter. I quote here the observations of the Supreme Court:
"19. It may be true that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens. The doctrine of prospective overruling although is applied to overcome such a situation, but then it must be stated expressly. The power must be exercised in the clearest possible term. The decisions of this Curt are clear pointer thereto.
20. As would be noticed by us hereafter in Suresh Chandra Verma (Dr.) V. Chancellor, Nagpur University, this Court held: (SCC p. 64, para 15)
"15. The second contention need not detain us long. It is based primarily on the provisions of Section 57(5) of the Act. The contention is that since the provisions of that section give power to the Chancellor to terminate the services of a teacher only if he is satisfied that the appointment 'was not in accordance with the law at that time in force' and since the law at that time in force viz. On 30-3-1985 when the appellants were appointed, was the law as laid down in ::: Downloaded on - 09/06/2013 14:46:01 ::: 23 Bhakre Case the termination of the appellants is beyond the powers of the Chancellor. The argument can only be described as naive. It is unnecessary to point out that when the court decides that the interpretation of a particular provisions as given earlier was not legal, it in effect declares that the law as it stood from the beginning was as per its decision, and that it was never the law otherwise. This being the case, since the Full Bench and now this Court has taken the view that the interpretation placed on the provisions of law by the Division Bench in Bhakre case was erroneous, it will have to be held that the appointments made by the University on 30-3-1985 pursuant to the law laid down in Bhakre Case were not according to law. Hence, the termination of the services of the appellants were in compliance with the provisions of Section 57(5) of the Act."
21. The ratio laid down by this Court, as noticed hereinafter, categorically shows the effect of a decision which had not been directed to have a prospective operation. The legal position in clear and unequivocal term was stated by a Division Bench of this Court in M. A. Murthy Vs. State of Karnataka in the following terms: (SCC pp. 520-521, para 8) "8. The learned counsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. Normally, the decision of ::: Downloaded on - 09/06/2013 14:46:01 ::: 24 this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in Golak Nath V. State of Punjab. In Managing Director, ECIL V. B. Karunakar the view was adopted.
Prospective overruling is a part of the principles of constitutional canon of interpretation and can be restored to by this Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. (See Ashok Kumar Gupta V. State of U. P. and Baburam Vs. C. C. Jacob). It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistency in judicial ::: Downloaded on - 09/06/2013 14:46:01 ::: 25 decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in Ashok Kumar Sharma Case No. II. All the more so when the subsequent judgment is by way of review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are therefore, set aside."
29. More over, the judgment of the Full Bench has attained finality. The special leave petition has been dismissed. The subsequent Division Bench therefore, could not have said as to whether the law declared by the Full Bench would have a prospective operation or not. The law declared by a Court will have a retrospective effect if not otherwise stated to be so specifically. The Full Bench having not said so, the subsequent Division Bench did not have the jurisdiction in that behalf."
As can be seen from the decision in Baldev Ade's case it ::: Downloaded on - 09/06/2013 14:46:01 ::: 26 is clear that the Bench itself does not say whether the judgment is prospective or retrospective. In the absence of such specific directions it must be held in view of the above decisions that the decision in Baldev Ade's case operates retrospectively. If it is to operate retrospectively no fault can be found with the judgment of the School Tribunal. In the circumstances there is no substance in the Writ Petitions. They are dismissed. No order as to costs.
Learned counsel for the petitioners submits that operation of the order may be stayed for a period of four weeks.
Considering the fact that the petitioners were holding said posts for more than twenty years, it would be desirable to stay operation of this order for a period of four weeks.
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