Gujarat High Court
K.R. Joshi vs State Of Gujarat on 10 February, 2020
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/4472/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4472 of 2008
With
R/SPECIAL CIVIL APPLICATION NO. 7821 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
NO
order made thereunder ?
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K.R. JOSHI
Versus
STATE OF GUJARAT
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR DHAWAN JAYSWAL, AGP(1) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 10/02/2020
COMMON ORAL JUDGMENT
1. In both these petitions, the petitioners, at the relevant point of time, were serving as Mamlatdar in the Revenue Department and on the basis of the chargesheets issued upon them, they were denied promotion to the post of Deputy Collector and, therefore, the present petitions are filed by the petitioners for promotion and other consequential benefits.
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2. Special Civil Application No.7821 of 2016 is filed by the petitioner seeking quashing of the order dated 09.01.2015 passed by the Under Secretary, Revenue Department, State of Gujarat, by which the petitioner is subjected to penalty of withholding of Rs.1,000/ p.m. from the pension of the petitioner for a period of three (03) years and the decision of the respondentGujarat Public Service Commission (GPSC) dated 11.11.2014. Further, deemed date promotion is also prayed to the post of Deputy Collector with all consequential benefits and arrears of pay w.e.f. 24.07.2007. A prayer is also made for benefit of higher pay scale w.e.f. 01.06.2002 with all consequential benefits and arrears of pay.
3. In Special Civil Application No.4472 of 2008, the petitioner has prayed for a direction against the respondents for granting her the promotion to the post of Deputy Collector and a prayer is also made for setting aside the order dated 24.07.2008 passed by the respondent authority, by which the representation of the petitioner has been rejected.
4. The brief facts, which have preceded the filing of the Special Civil Application No.7821 of 2016 are that - the petitioner was initially appointed as a Deputy Mamlatdar on 01.10.1977. She Page 2 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020 C/SCA/4472/2008 JUDGMENT was promoted as Mamlatdar on 16.03.1996 and superannuated on 31.07.2009. At the time when the petitioner was serving as a Mamlatdar, she was subjected to a departmental inquiry for the alleged misconduct inter alia alleging that while deciding the cases under the Gujarat Tenancy and Agricultural lands Act, 1948 (the Tenancy Act), as a Mamlatdar and ALT, Nadiad, she had passed an order declaring certain tenants as the permanent tenants. It was alleged that the said decisions were contrary to the provisions of Section 431B of the Tenancy Act and contrary to the Circulars dated 22.10.1965 and 26.09.1967 issued by the Revenue Department, State of Gujarat, and because of the same, the Government suffered a loss of premium of Rs.64,86,600/. Accordingly, the petitioner was issued a chargesheet dated 01.06.2005 and she was asked to give reply to the same.
5. The aforesaid chargesheet was issued in connection with the decision taken by the petitioner as a quasijudicial authority between a period from 17.01.1998 to 19.10.2001. It appears that since the departmental proceedings were not completed, the petitioner filed the writ petition being Special Civil Application No.12254 of 2008 for expeditiously completing all the inquiry and by the order dated 10.10.2008, the said writ petition was disposed of by this court by issuing a Page 3 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020 C/SCA/4472/2008 JUDGMENT direction to the authority to complete the departmental inquiry pending against the petitioner and submit a report on or before 30.11.2008. Accordingly, the inquiry officer, after considering the entire evidence, gave a detailed report on 18.10.2008, whereby the inquiry officer held in favour of the petitioner and no charges were proved and exonerated the petitioner.
6. The departmental authority - respondent No.1 did not agree with the aforesaid report of the Inquiry Officer and issued a showcause notice dated 20.10.2012 holding the charges proved against the petitioner. Responding to the show cause notice, the petitioner gave a detailed reply on 18.03.2013 and after considering the same, the Disciplinary Authority imposed penalty of withholding of Rs.1,000/ p.m. from the pension of the petitioner for a period of three (03) years.
7. Learned advocate Mr.S.P.Majmudar appearing for the petitioner has submitted that the impugned order imposing punishment is required to be quashed and set aside since the showcause notice dated 20.12.2012 is illegal and contrary to the decisions of the Apex Court. Reliance is placed upon the judgements of the Apex Court in the case of Yoginath D. Bagde Vs. State of Maharashtra, 1999 S.C. 3734, S.P.Malhotra Vs. Punjab National Bank, Page 4 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020 C/SCA/4472/2008 JUDGMENT 2013 7 S.C.C. 251, Lav Nigam Vs. Chairman and MD, ITI Ltd. & Anr., (2006) 9 S.C.C. 440, State Bank of India & Ors. vs. K.P. Narayanan Kutty, A.I.R. 2003 S.C. 1100, Canara Bank vs. Shri Debasis Das, A.I.R. 2003 S.C. 2041. Reliance is also placed on the judgement of this court in the case of Jitendrakumar Vallabhdas Chotai vs. Principal District Judge & Disciplinary Authority, Rajkot & Anr. (2017) 4 G.L.R. 3585 and the learned advocate Mr.Majmudar has submitted that as per the provision of subrule (2) of Rule 10 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, if the disciplinary authority disagrees with the findings of the inquiry authority on any article of charge before recording the findings, an opportunity of hearing is required to be given to the delinquent.
8. It is asserted by learned advocate Mr.Majmudar that in the present case, in the showcause notice itself, the disciplinary authority has reversed the findings of the inquiry officer and thereafter, the petitioner was called upon to explain. It is contended that since the disciplinary authority has already made up the mind, the further explanation of the petitioner to the showcause notice can be said to be a futile exercise.
Page 5 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020C/SCA/4472/2008 JUDGMENT 9. Learned advocate Mr.Majmudar has further submitted that the petitioner was serving as a Mamltdar and was acting as a quasijudicial
authority under the provisions of the Tenancy Act and hence, any decision rendered by her was subject to further appeal and it cannot be said that the petitioner has exceeded her jurisdiction and hence has caused loss to the Government exchequer. He has submitted that during the period when she was working as a Mamlatdar, as per the provisions of the Tenancy Act, acting as a quasijudicial authority all the orders are subject to further scrutiny of the District Collector. It is submitted that the petitioner has exercised her power under sections 70(o) and 32(p)(2)(b) of the Tenancy Act and hence, all the orders were subjected to approval of the District Collector and in 22 cases the District Collector has given approval and in 02 cases, the decisions of the petitioner have been reviewed by the Deputy Collector and she has acted as per the Government Circulars dated 18.01.1996, 18.06.1997 and 26.09.1997.
10. In support of his submissions, learned advocate Mr.Majmudar has placed reliance on the judgement of the Apex Court in the cases of Zunjarrao Bhikaji Nagarkar Vs. Union of India & Ors., (1999) 7 S.C.C. 409, Ramesh Chander Singh Vs. High Court of Allahabad & Anr., (2007) 4 S.C.C. Page 6 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020 C/SCA/4472/2008 JUDGMENT 247, Krishna Prasad Verma (D) Thr. Lrs. Vs. State of Bihar & Ors., 2019 S.C.C. OnLine S.C. 1330. Thus, the learned advocate has submitted that the impugned order is required to be set aside.
11. Learned advocate for the petitioner has further submitted that because of the pendency of the departmental inquiry and issuance of the chargesheet, the petitioner is also denied the promotion to the post of Deputy Collector and juniors to the petitioner are promoted by the order dated 24.07.2007. He has also submitted that the respondent authorities have denied the benefit of higher payscale w.e.f. 01.06.2002 as she was suspended by the order dated 08.10.2001 because of the pendency of the departmental inquiry, which was subsequently revoked on 13.10.2003 and she was reinstated in service. It is submitted that if the impugned order of punishment as well as departmental inquiry are set aside, the petitioner would also entitled to the consequential benefits of promotion and the higher payscale.
12. While opposing the aforesaid submissions advanced by learned advocate Mr.Majmudar, learned Assistant Government Pleader Mr.Dhawan Jayswal has submitted that the impugned order does not require any interference since it was found that the petitioner has indulged herself in not following Page 7 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020 C/SCA/4472/2008 JUDGMENT the circulars of the State Government, which were required to be considered while passing the orders under the Tenancy Act. He has further submitted that since the Disciplinary Authority has found various lacuna in the observations of the inquiry officer, a showcause notice dated 20.12.2012 was issued to the petitioner disagreeing with the findings of the inquiry officer.
13. Learned AGP for the petitioner has submitted that the petitioner made a representation dated 18.03.2013 to the showcause notice and after considering her contentions, by the impugned order, the petitioner was imposed a penalty of withholding of Rs.1,000/ p.m. from the pension of the petitioner for a period of three (03) years. He has submitted that since the petitioner was afforded full opportunity of hearing, the judgements, on which reliance is placed by the petitioner, cannot be applied to the facts of the case. He has further submitted that the petitioner was subjected to the departmental inquiry and was suspended, and she ultimately imposed penalty thus, she was not entitled to any promotion or the higher payscale. Thus, it is urged that the petition cannot be entertained and the impugned order of punishment may not be interfered with.
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14. I have heard the learned advocates appearing on behalf of the respective parties at length. The documents as pointed out by them are also perused.
15. A short issue involved in the writ petition, which needs deliberation, is that whether the impugned showcause notice dated 20.12.2012 meets with the law enunciated by the Apex Court in the various judgements.
16. The petitioner was suspended in view of the departmental inquiry by the order dated 08.10.2001 and thereafter, the suspension was revoked on 13.10.2003. The petitioner was issued the charge sheet on 01.06.2005, inter alia, alleging that while acting as a quasijudicial authority Mamlatdar for a period between 17.01.1998 to 09.10.2001, the petitioner had decided certain cases, by which the orders were passed declaring the said tenants as the permanent tenants under section 43(1)B of the Tenancy Act and such action was contrary to the circulars issued by the Revenue Department dated 22.10.1965 and 26.09.1967 and in view of such orders, the Government suffered loss of premium of Rs.64,86,600/. The petitioner was subjected to departmental inquiry and after comprehensive report dated 18.10.2008 running into almost 149 pages, the inquiry officer did not find any of the charges proved against the petitioner.
Page 9 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020C/SCA/4472/2008 JUDGMENT The Disciplinary Authority disagreed with the
findings of the inquiry officer and issued a show cause notice dated 20.10.2012 to the petitioner holding that the petitioner did not properly exercise her powers under section 70(o) of the Tenancy Act, which led to loss of premium to the tune of Rs.64,86,600/ to the State and for the reasons stated in the showcause notice, all the charges are held to be proved.
17. A perusal of the showcause notice dated 20.12.2012 reveals that the Disciplinary Authority, in a very concise manner in four 4 sentences, has disagreed with the findings of the inquiry officer and held the charges proved against the petitioner. Thus, while issuing the showcause notice to the petitioner, the Disciplinary Authority has already held the charges as proved by reversing the findings of the inquiry officer. Such action of the disciplinary authority is in violation of principles of natural justice and the ratio laid down by the Apex Court. It is no more res integra that before reversing the findings of the inquiry officer, which are in favour of the delinquent, the Disciplinary Authority is required to give opportunity of hearing to the delinquent. The subsequent representation filed by the petitioner dated 18.03.2013 to such showcause notice would be a futile exercise as the charges are already held Page 10 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020 C/SCA/4472/2008 JUDGMENT to be proved, while issuing the showcause notice, which shows predetermination of mind on behalf of the disciplinary authority.
18. At this stage it would be apposite to refer to the decision dated 23.01.2020 rendered by this court in the case of Jayant H. Diwan vs. The Gujarat State Civil Supply Corporation Limited (Special Civil Application No.4002 of 2007), whereby this court in an identical issue, after surveying various judgements of the Apex Court and after examining subrule (2) of rule 10 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 has held thus:
8. Learned advocate Mr.Raval for the petitioner has also placed reliance on the judgment of Coordinate Bench of this Court in the case of Jitendrakumar Vallabhdas Chotai Vs. Principal District Judge & Disciplinary Authority, Rajkot & Anr., (2017) 4 GLR 3585.
While dealing with the similar issue and after survey of the judgments of the Apex Court including the decision in case of Yoginath Begade(supra) this Court has observed thus:
5.3.........In Yoginath B. Bagde Vs State of Maharashtra [(1999) 7 SCC 739] was a case with reference to Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 in which there was no provision requiring the Disciplinary Authority to give opportunity of hearing to the delinquent before differing with the inquiry officer. The Apex Court observed to hold, "But the requirement of 'hearing' in consonance with the principles of natural justice even at that stage has to be read into R. 9(2) and it has to be held that Page 11 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020 C/SCA/4472/2008 JUDGMENT before the Disciplinary Authority finally disagrees with the findings of the enquiring authority, it would given an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the 'TENTATIVE' reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reason on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of 'not guilty' already recorded by the enquiring authority was not liable to be interfered with."
5.4 In S.P. Malhotra Vs Punjab National Bank [(2013) 7 SCC 251] the appellant was appointed as ClerkcumCashier in the respondent Bank. It was held that in the event the Disciplinary Authority disagrees with the findings recorded by the inquiry officer, it must record reasons for disagreement and communicate the same to the delinquent. In that case the said court nothaving been resorted to, punishment of dismissal was set aside. Here also, the Apex Court relied on in ECIL (supra) and other decisions on the point, to record as under.
"The view taken by this court in the aforesaid case has consistently been approved and followed as is evident from the judgments in Yoginath D. Bagde vs. State of Maharashtra & Anr. AIR 1999 SC 3374; State Bank of India & Ors. v/s K.P.Narayanan Kutty, AIR 2003 SC 1100; J.A. Naiksatam vs. Prothonotary and Senior Master, High Court of Bombay & Ors., AIR 2005 SC 1218; P. D. Agrawal vs. State Bank of India & Ors., AIR 2006 Sc 2064; and Ranjit Singh vs. Union of India & ors. AIR 2006 SC 3685."
5.5 The decision in Lav Nigam (supra), a similar question arose as regards the Page 12 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020 C/SCA/4472/2008 JUDGMENT procedure to be followed by the disagreeing disciplinary authority. It was held that the Disciplinary Authority is bound to give notice setting out his tentative conclusions to the charged employee, whereafter the petitioner would again have to be served with a notice relating to punishment proposed, in the event the Disciplinary Authority stands not satisfied after considering the explanation of the delinquent.
5.5.1 It was held, "The conclusion of the High Court was contrary to the consistent view taken by this court that in case the Disciplinary Authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the Disciplinary Authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed."
5.5.2 It was further stated and it covers the facts of this case to apply squarely,"...
It is clear that no notice at all was given before the Disciplinary Authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to show cause was merely a showcause against the proposed punishment. In view of the long line of authorities, the decision of the High Court cannot be sustained. The appeal is accordingly allowed and the decision of the High Court is set aside.
5.5.3 The Court also showed manner of granting relief by stating, "The proceedings may be recommenced from the stage of issuance of a fresh showcause notice by the Disciplinary Authority to the appellant indicating his tentative disagreement with the findings of the Page 13 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020 C/SCA/4472/2008 JUDGMENT inquiry officer."
7.1 The ratio of Kunj Behari Mishra (supra) was explained in Canara Bank Vs Shri Debasis Das [AIR 2003 SC 2041] wherein the Apex Court highlighted and underlined the aforesaid proposition of law. In S.P. Malhotra (supra), the Supreme Court further explained to hold as under.
"In fact, not furnishing the copy of the recorded reasons for disagreement from the enquiry report itself causes the prejudice to the delinquent and therefore, it has to be understood in an entirely different context than that of the issue involved in ECIL (supra)."
7.5 In State Bank of India Vs K.P. Narayan Kutti [(2003) 2 SCC 449], "In para 19 of the judgment in Punjab National Bank case extracted above, when it is clearly stated that the principles of natural justice have to be read into Regulation 7(2) [Rule 50(3)
(ii) of the State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case] and the delinquent officer will have to be given an opportunity to persuade the Disciplinary Authority to accept the favourable conclusion of the enquiry officer, we find it difficult to accept the contention advanced on behalf of the appellants that unless it is shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside by the High Court."
9. In the case of Lav Nigam Vs. Chairman and MD, ITI Ltd & Anr., (2006) 9 SCC 440, which is referred to by the coordinate Bench (in paragraph No. 5.5 in the case of Jitendrakumar Vallabhdas Chotai) has observed thus:
"The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a Page 14 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020 C/SCA/4472/2008 JUDGMENT notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed."
19. From the conspectus of the aforementioned observations of the Supreme Court and this Court. The following aspects are required to be maintained when the disciplinary authority disagrees with the findings of the Inquiry Officer.
a) There has to be tentative/proposed findings of the disciplinary authority disagreeing with the inquiry officer's report recorded in the show cause notice. The show cause notice of disagreement should be issued to the delinquent calling upon him as to "why the findings which are in his favour is/are not required to be reversed".
(c) While issuing the show cause notice, the expression "charges are proved" should be avoided, since; the same will reflect a predetermined application of mind on behalf of the disciplinary authority.
d) Such show cause notice shall not stipulate the imposition of particular penalty, minor or major. The expression "why any of the Page 15 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020 C/SCA/4472/2008 JUDGMENT penalty/punishment shall not be imposed" should be avoided.
e) After considering the reply of the delinquent to the show cause notice of disagreement, the disciplinary authority has to pass an order recording a definite finding of guilt reversing the findings of the inquiry officer, by holding the charges as proved or not proved.
f) After recording such findings, it is essential that the delinquent is issued a final show cause notice calling upon his explanation for imposition of penalty. [Vide Lav Nigam (Supra)].
g) After receipt of the reply to the show cause notice, the disciplinary authority has to pass reasoned and speaking order imposing appropriate penalty.
20. Thus, the procedure adopted by the disciplinary authority does not meet with the parameters enunciated by the Apex Court in the aforementioned decisions of the Apex Court. Hence, the punishment order which is premised on such faulty procedure cannot be sustained. Since the petitioner has already retired on 31.12.2008, the issue of remanding the matter to the Disciplinary Authority from the stage of such defect would not arise.
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21. It is also not in dispute that the petitioner, while serving as a Mamltdar under the provisions of the Tenancy Act acts as a quasijudicial authority and while exercising power under section 70(o) of the Tenancy Act, she has to decide various cases. The petitioner accordingly had passed various orders, while discharging as a quasijudicial authority. The Apex Court in the case of Zunjarrao Bhikaji Nagarkar (supra) has held that a wrong interpretation of law cannot be a ground for misconduct if the same is not tainted with actual mala fide. The Apex Court has held thus:
"43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the chargesheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned chargesheet is rendered illegal. The chargesheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings."
It is held by the Apex Court that in order to maintain any chargesheet against the quasi Page 17 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020 C/SCA/4472/2008 JUDGMENT judicial authority, something more has to be alleged than a mere mistake of law and if every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasijudicial officers.
22. Thus, it is not the case of the respondent authorities that the petitioner has acted mala fidely or with ulterior motive to pass the orders under Section 70(o) of the Tenancy Act. In absence of such allegation, mere error in the order passed by the petitioner, while acting as a quasijudicial authority, does not fall within parameters of misconduct. This court could have remanded the matter to the disciplinary authority from the stage of defect, but such course of action is not necessitated since the petitioner has already retired on reaching the age of superannuation on 31.07.2009.
23. On the substratum of the aforesaid observations, the impugned order dated 09.01.2015 (in Special Civil Application No.7821 of 2016) is hereby quashed and set aside. The respondents are hereby directed to refund the amount, which is recovered from the petitioner, in view of the impugned order of punishment and to refix the pension of the petitioner.
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24. It appears that the petitioner was not granted the promotion and higher payscale to the post of Deputy Collector, in view of the departmental inquiry, which were initiated by the chargesheet dated 01.06.2005 and the order of punishment. Since the impugned order of punishment is set aside for the reasons recorded hereinabove, the respondents are directed to pay consequential benefits and to promote the petitioner from the date she was superseded by her juniors i.e. w.e.f. 24.07.2007. If the petitioner is denied the benefit of higher pay scale, the respondents are also directed to pay the same. The entire exercise of conferring the benefits to the petitioner(s) and refixing the payment of retirement benefits shall be carried out within a period of three (03) months from the date of receipt of writ of this order.
25. Both the present writ petitions are allowed. Rule is made absolute.
26. Registry to place a copy of this order in each of the connected matter. SD/ (A. S. SUPEHIA, J) NVMEWADA - bhavesh Page 19 of 19 Downloaded on : Sun Jun 14 07:15:03 IST 2020