Gujarat High Court
Sangeetaben Bhupendrabhai Parekh vs State Of Gujarat on 24 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/21069/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 21069 of 2015
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SANGEETABEN BHUPENDRABHAI PAREKH
Versus
STATE OF GUJARAT
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Appearance:
MR SAMIR B GOHIL(5718) for the PETITIONER(s) No. 1
MR D.M. DEVNANI, AGP (1) for the RESPONDENT(s) No. 1
MR PUNIT B JUNEJA(3972) for the RESPONDENT(s) No. 3
NOTICE SERVED(4) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 24/04/2018
ORAL ORDER
1. Heard Mr. Gohil, learned advocate for the petitioner Mr. Juneja, learned advocate for the respondent No.3 and Mr. D.M. Devnani, learned AGP for the respondent No.1.
2. In present petition the petitioner has prayed, inter alia, that: "13(A) Quashing and setting aside letter dated 17.10.2015 (AnnexureF) and directing the respondents to pay lump sum financial assistance (compensation) as per the Government Resolution dated 5.7.2011.
(B) During the pendency and final disposal of this petition, the respondents may be directed to reconsider the case of the petitioner as per the Government Resolution dated 5.7.2011"
3. To justify the relief prayed for in the petition, the petitioner has narrated below 1 C/SCA/21069/2015 ORDER mentioned facts: "2. The husband of the petitioner was serving as Junior Clerk ClassIV employee under the respondent No.3 and he died on 12.10.1995 while in service. The petitioner made application dated 17.1.1996 for compassionate appointment. ... The respondent No. 3 forwarded the recommendation to the respondent No. 2 vide letter dated 6.2.1996.....The aforesaid application remained pending till the date new scheme for lump sum compensation came into force on 5.7.2011.
3. Thereafter, the respondent no. 3 sent the proposal by the letter dated 24.12.2011 to the respondent No. 2 for lump sum compensation as per the government resolution dated 5.7.2011... Since there was no response from the respondent authorities, the petitioner made application dated 20.11.2012 requesting for lump sum compensation.
4. Thereafter the respondent No. 2 sought information from the respondent No. 3 vide letter dated 2.11.2012. By the letter dated 21.11.2012, the respondent No. 3 forwarded the details to the respondent No. 2....
5. Finally by the letter dated 17.10.2015, the respondent No. 2 rejected the claim for lump sum compensation on the ground that the application cannot be said pending as per clause5 of the G.R. dated 5.7.2011....."
4. The petitioner seeks lump sum financial assistance (compensation) in accordance with the policy declared vide G.R. dated 5.7.2011.
5. From above quoted facts it has emerged that the petitioner's husband was serving as Junior Clerk (classIII employee) with the respondent No.3 college.
5.1 At this stage it is necessary to mention that the respondent No.3 college is a GrantinAid institute.
6. The petitioner's husband died in harness on 2 C/SCA/21069/2015 ORDER 12.10.1995.
6.1 Sometime thereafter the petitioner herein submitted application dated 17.1.1996 and prayed for appointment on compassionate ground in accordance with the policy which was in force at the relevant time.
6.2 According to the petitioner, the respondent No.3 college had forwarded application dated 17.01.1996 to the respondent No.2 in February 1996.
6.3 The petitioner has alleged that the said application remained pending before the concerned authority for almost five years and the authority did not take any decision with regard to the application dated 17.1.1996.
6.4 According to the petitioner during pendency of the said application before the authority, the respondent State cancelled the policy to grant appointment on compassionate ground and instead, in July 2011, introduced another scheme / policy 3 C/SCA/21069/2015 ORDER viz. to pay lump sum compensation to the heirs / legal representatives of the deceased vide G.R. dated 5.7.2011.
7. At this stage it is necessary to note an interesting fact.
7.1 The petitioner has claimed that though after submitting application dated 17.1.1996 and more particularly after the government introduced resolution dated 5.7.2011, she did not submit application for lump sum compensation either to respondent No.3 or to respondent Nos.1 and 2, however the respondent no. 3 on its own motion, forwarded proposal vide its letter dated 24.12.2011 to the respondent No.2 for lump sum compensation to be paid to the petitioner in light of G.R. dated 5.7.2011.
7.2 From the petition or from the submission by learned advocate for the petitioner any reason as to why the respondent no. 3 should, on its own motion and without any request / application by 4 C/SCA/21069/2015 ORDER the petitioner for lump sum compensation and in absence of declaration by the petitioner that instead of appointment on compassionate ground lump sum compensation may be paid, forward such proposal to the respondent no. 2.
8. Any explanation on this count does not come from the petitioner, not even from the respondent no. 3 college.
9. Interestingly respondent no. 3 forwarded such proposal, without consent by the petitioner to the respondent no. 2 in December 2011.
10. The petitioner claims that in November 2012 (20.11.2012) she approached respondent authority with the request for lump sum compensation.
11. The petitioner has also alleged that she sought certain information from respondent no.3.
12. According to the petitioner's allegation, the respondent no.3 forwarded certain details to respondent no.2 vide its communication dated 5 C/SCA/21069/2015 ORDER 21.11.2012.
13. The petitioner has the alleged that subsequently in October 2015 the respondent no. 2 conveyed the decision, vide letter dated 17.10.2015, that the claim for lump sum compensation is rejected.
14. Feeling aggrieved by said communication and decision the petitioner has taken out present petition.
15. The respondent Nos.1 and 2 have filed affidavit wherein it is averred and stated that: "5. It is most respectfully submitted that by way of the present petition, the petitioner has prayers for quashing and setting aside the letter dated 17.10.2015 at AnnexureF at page no.1l to the memo to the petition and directing the respondent to pay lumsum Financial Assistant (compensation) as per the Government Resolution dated 05.07.2011. It is further prayed that the respondent may be directed to reconsider the case of the petitioner as per the Government Resolution dated 05.07.2011.
6. It is most respectfully submitted that the husband of the petitioner namely Bhupendrabhai Parekh was expired on 12.10.1995 and the application for compassionate appointment was made before the respondent no.3 i.e. to the Principal of Patel Raman Brothers Arts and commerce Collage on 17.01.1996 and thereafter, the respondent no.3 forwarded the application to the respondent no.2 i.e. Joint Director office of the Commissioner Higher Education dated 06.02.1996 for consideration the case of the petitioner for compassionate appointment and thereafter the respondent no.2 had sought various details of the applications of the petitioner for the purpose of compassionate appointment from the respondent no.3 but the same has not been provided to the respondent no.2 as on date.
7. It is most respectfully submitted that the respondent no.2 vide letter dated 24.12.2011 had sent a proposal of the petitioner to the respondent no.3 as per the policy dated 05.07.2011 and for the purpose of considering the case of the 6 C/SCA/21069/2015 ORDER petitioner as to whether the petitioner wants lumsum compensation due of compassionate appointment.
8. It is most respectfully submitted that the office of the respondent no.2 had written a letter to the office of the respondent no.3 dated 28.05.2015 wherein, it is categorically stated that it is the same of the respondent no.3 office that the application of the petitioner of the year 1996 for the purpose of compassionate appointment was sent to the office of the respondent no.2 but in regards to the same it is respectfully submitted by the office of the respondent that no further communication from the respondent no.3 has been received in the office of the respondent no.2 till date. Annexed herewith and marked as AnnexureRI is the copy of the letter dated 28.05.2015 and it is further consideration in the letter that the office of the respondent no.3 was to produce all the relevant document within the period of 7 days from the date of the receipt of the letter and according to the resolution dated 05.07.2011.
9. It is most respectfully submitted that the office of the respondent no.3 vide letter dated 22.09.2015 had communicated to the office of the respondent no.2 that office of the respondent no.3 has termite and bugs therefore the office of the respondent no.3 could not send the relevant papers such as inward register, outward register etc. in view of the above it is respectfully submitted that since the office of the respondent no.2 could not get appropriate/relevant document for consideration of the case of the petitioner for the purpose compassionate appointment with lumsum compensation the application/representation of the petitioner is rejected by the respondent no.2 herein."
16. From the details mentioned by the respondent Nos.1 and 2 in the affidavit and the documents annexed to the affidavit it has emerged that the respondent has disputed that any application seeking compassionate appointment was forwarded to the competent authority in February 1996 either directly by the petitioner or by the respondent no.3. It is claimed that the respondent had not received any application.
17. From the said affidavit, particularly the 7 C/SCA/21069/2015 ORDER details mentioned in paragraph No.6 and the document dated 28.5.2015 (AnnexureR1 to the affidavit) it comes out that the respondent Nos.1 and 2 inquired from the respondent no.3 for material to demonstrate that the application was forwarded in February 1996 and to also provide the application and other relevant details.
18. Learned AGP for the respondent has claimed that the respondent No.3 never submitted any details or material and at any point of time such material was not received (by the respondent) either directly from the petitioner or even from the respondent no.3.
19. In this background learned advocate for petitioner submitted that the petitioner had submitted application to the principal of the college (respondent no.3) immediately after her husband died.
20. Mr.Gohil, learned advocate for the petitioner submitted that the application remained pending 8 C/SCA/21069/2015 ORDER till 2011 and when the respondent no. 1 introduced new policy in July 2011, the respondent No. 3 college forwarded a request to the respondent nos. 1 and 2 that the petitioner should be paid lump sum compensation. According to learned advocate for the petitioner, since the respondent did not accept the request and rejected the petitioner's demand vide decision dated 17.10.2015, the petitioner has taken out this petition. According to the learned advocate for the petitioner, the petitioner is entitled for compensation in accordance with G.R. dated 5.7.2011 and therefore the respondent should be directed to pay compensation in accordance with the said policy.
21. Learned AGP opposed the petition. He reiterated the objection that the petitioner has taken out present petition almost 20 years after the concerned employee died.
22. Learned AGP vehemently emphasised that at any point of time, respondent No.2 did not receive 9 C/SCA/21069/2015 ORDER any communication from respondent No.3, much less the petitioner's application for compassionate appointment allegedly forwarded by respondent No.3 in 2006.
23. Learned AGP further submitted that when respondent No.2 received the communication in 2012, the said respondent made inquiry with respondent No.3 and inquire from the respondent No.3 to forward the material which may enable respondent No.3 to determine as to whether such application was ever forwarded or not and which may also enable it (i.e. respondent No.2) to process the application, if at all it was forwarded to respondent No.2 at the relevant time. However, respondent No.3 never submitted the details / material and respondent No.2 did not receive any material / document from respondent No.3 which would support the claim that the petitioner's application was forwarded by respondent No.3 to the office of respondent No.2 in 2006.
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24. Learned AGP submitted that for almost 20 years after allegedly submitting the application, the petitioner did not take any step and/or did not make any inquiry with respondent No.2 which establishes that there is no justification in petitioner's claim and the petition deserves to be rejected.
25. I have considered rival submissions and material available on record.
26. Two prominent and material aspects which have emerged from the record and from the rival submissions are -
(a) the concerned employee, i.e. the petitioner's husband died in October 1995. The petitioner has taken out present petition in 2015, i.e. almost 20 years after the sad demise of her husband; and
(b) the petition involves several disputed facts which are such that cannot be determined merely on affidavit but would necessitate oral as well 11 C/SCA/21069/2015 ORDER as documentary evidence, more particularly in view of the specific contention of the respondent that any communication from respondent No.3 allegedly forwarding the petitioner's application in 2006 was never received and has not been received at any point of time in the office of respondent No.2.
27. The facts which have emerged from the record, are slightly curious and not easily palatable.
28. According to the case which is made out by the petitioner, her husband died in October 1995. Thereafter, the petitioner, allegedly, submitted application seeking appointment on compassionate ground in January 1996.
29. However, there is no evidence on record to demonstrate that the application was ever forwarded to respondent Nos.1 and 2.
30. It is pertinent that the petitioner addressed the said application and submitted the said application to the Principal of respondent No.3 12 C/SCA/21069/2015 ORDER college.
31. It is not the case of even present petitioner that she had forwarded the said application to respondent No.2 or any other authority with respondent No.2 or respondent No.1.
32. There is no evidence on record to even prima facie suggest and indicate that respondent No.3 had ever forwarded the said application to Commissioner, Higher Education, under the communication dated 6.2.1996.
33. A document, which according to the petitioner, is photocopy of the letter dated 6.2.1996, is placed on record at AnnexureB, page
7.
34. A glance at the said communication reflects that at the place marked 'date' (wherein the date 06021996) is mentioned, certain overwriting is apparent and visible. At the place marked 'No.', the word 'Rahemrahe' is reflected. However, the said document does not contain any outward 13 C/SCA/21069/2015 ORDER number.
35. It is pertinent that interestingly, rather curiously, respondent No.3 has very conveniently not filed any affidavit. The incumbent in the office of Principal of respondent No.3 college who, allegedly, received the application from present petitioner and forwarded the application to respondent No.2, has also not filed any affidavit stating that he had received the application from the petitioner and had forwarded the said application to respondent No.2. Apart from the said fact, respondent No.3 has not filed any affidavit identifying the signatures which are reflected from the document at AnnexureA and/or from the document at AnnexureB as the signature of person who held the office of Principal at the relevant time. Meaning thereby, neither the said person himself has come forward and declared that he had received the application and had forwarded application to respondent No.2 nor any other person from respondent No.3 has 14 C/SCA/21069/2015 ORDER come forward to state, on oath, that to place on record name of the person who held the office of Principal at the relevant time and to declare that the signature which is reflected the document at AnnexuresA & B, is of the person who held the office at the relevant time. These aspects involved in present case - which are rather major and prominent part of the matter - do not inspire confidence in the claim.
36. Further, when respondent Nos.1 and 2 made inquiries with the petitioner to forward relevant documents and material, respondent No.3 seems to have informed respondent Nos.1 and 2 that the material at that relevant period is not available because it is destroyed by termite.
37. The respondents are, therefore, right in their submission that the said excuse or reply gives rise to doubt rather than satisfying the query and the doubt about the document which is placed at AnnexureB, page 7.
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38. It is also relevant to note that the respondent Nos.1 and 2 claim that when respondent Nos.1 and 2 called for relevant document from respondent No.3, the respondent No.3 informed that any documents or material with regard to the petitioner's application are not available because the documents are destroyed by termite and that such reply neither answers the query nor satisfies the doubt about the veracity and genuineness of the document (placed on record by the petitioner of this petition at AnnexuresA & B). It is pertinent that if the reply by the respondent No.3 had substance then there would be explanation with regard to the issue viz. when the documents were lost by termite, how did the petitioner come in possession of the document at AnnexureB more particularly when copy of the said document was not forwarded to the petitioner / was not marked to the petitioner at relevant time.
39. Aforesaid aspects are mentioned to illustrate 16 C/SCA/21069/2015 ORDER and to demonstrate that the petition gives rise to the several doubt about the facts stated by the petitioner and that the petition is taken out almost 20 years after (in 2015) the employee died (in 1995) and it raises and involves several issues of disputed facts.
40. Another relevant aspect which is involved in and arises in present petition, is that even if it is assumed that the petitioner had submitted application in 1996 and if it is assumed that respondent No.2 had forwarded the said application to respondent No.3 in February 1996, then also there is no explanation from the petitioner's side with regard to her inaction from 1996 to 2011.
41. Another important fact is that the erstwhile policy came to be cancelled / withdrawn by respondent No.1 in July 2011. During the interregnum i.e. from 1995 to 2011, the petitioner did not take any action in pursuance of the application which was allegedly submitted 17 C/SCA/21069/2015 ORDER in 1986. She did not pursue the application - never made any inquiry about the application and its progress of application with respondent No.2 nor even with respondent No.3. It is not the case of the petitioner, in the memo of present petition, that she had pursued the application and made inquiries about its progress with respondent No.2 or respondent No.1 or even with respondent No.3. During entire interregnum, the petitioner was completely inactive and passive in the matter of her application.
42. Thereafter, when the Government introduced new scheme / policy, without any request from the petitioner, the respondent No.3, very curiously and interestingly, on its own motion forwarded the request - recommendation to respondent No.2 that the petitioner should be paid lump sum compensation in light of the policy introduced vide government resolution dated 5.7.2011.
43. It is necessary to note at this stage (in this context) that by this time almost 16 years 18 C/SCA/21069/2015 ORDER had passed since the sad demise of the employee.
44. It is also necessary to note that before the respondent No.3 forwarded such request to the respondent No.1 / respondent No.2 or even at the time when the respondent No.3 took said action on its own motion, the petitioner had not approached respondent No.3 with such request and neither the petitioner had not raised such request directly with respondent No.1 or respondent No.2 nor the petitioner had given consent or authority to the respondent No.3 to seek lump sum compensation instead of appointment on compassionate ground. It is not the case even of the petitioner that she had requested respondent No.3 to submit such request and/or that she authorised the respondent No.3 for such purpose and/or that she had given her consent to the respondent No.3 for said purpose. Besides this, when the application allegedly submitted in 1996 was still, allegedly, pending and was not rejected, then such request by respondent No.3 on its own motion and without 19 C/SCA/21069/2015 ORDER petitioner's consent and authorisation, would not have any value in law and such request by respondent No.3 cannot be taken cognizance of and cannot be processed by respondent No.2 or respondent No.1.
45. In this background, the question about the role and conduct of respondent No.3 arises. It is not clear as to what promoted respondent No.3 to take such action on its own motion, more particularly when the petitioner had, on her own motion, not declared that she was ready and willing to forgo her claim for appointment on compassionate ground and to accept compensation instead of appointment and when she had not given her authorisation and consent to respondent No.3.
46. Besides, in present petition, the glaring gross delay of 20 years (sad demise in 1995) taking action (filing present petition) in 2015 cannot be ignored and said delay should be sufficient to reject any claim for appointment on compassionate ground more so when present 20 C/SCA/21069/2015 ORDER petition does not inspire confidence with regard to several submission by petitioner, more particularly about the allegation and claim that application was submitted in 1996 involves above mentioned disputed issues which cannot be examined and determined in present petition.
47. From above mentioned facts, it has emerged that:
(a) The petitioner claims that she submitted application (dated 17.1.1996) for appointment on compassionate ground to respondent No.3;
(b) There is no material on record to demonstrate that the application was actually submitted to respondent No.3 in January 1996;
(c) It is not the case of the petitioner that she had submitted the application to the competent authority, i.e. respondent No.2 or respondent No.1, in 1996;
(d) The petitioner claims that respondent No.3 had forwarded the petitioner's aforesaid 21 C/SCA/21069/2015 ORDER application to respondent No.2 or respondent No.1, however, there is no material to establish that respondent No.3 had actually forwarded the said application to respondent No.2 or respondent No.1;
(e) It is pertinent that any responsible officer for respondent No.3 has not filed affidavit, declaring on oath that from its end the application was forwarded to respondent No.2 or respondent No.1. Any evidence (e.g. postal receipt and/or stamp / signature by inward clerk of respondent No.1 or respondent No.2 acknowledging the receipt) to demonstrate that the said application was forwarded by respondent No.3 to respondent No.2 or respondent No.1 in 1996, is not placed on record either by the petitioner or even by respondent No.3;
(f) Respondent No.3 has maintained, convenient and stoic silence and any statement on oath about the receipt of the 22 C/SCA/21069/2015 ORDER application from the petitioner and/or any statement declaring that the application was received from the petitioner and it was forwarded to the authority, is not made;
(g) When the respondent No.2 specifically asked respondent No.3 to give the details related to petitioner's application (viz.
when was the application forwarded to the office of respondent No.2 and to also submit evidence which would demonstrate that the application was forwarded respondent No.2), however, respondent No.3 never submitted such material to respondent No.2. Even on record of this petition, respondent No.3 has not placed any material and, as aforesaid, not even filed affidavit declaring that the said application was forwarded to respondent No.2;
(h) On the contrary, in reply to the query by respondent No.2, respondent No.3 seems to have informed respondent No.2 that any material is not available because the 23 C/SCA/21069/2015 ORDER documents are destroyed by termite;
(i) On one hand, respondent No.3 declared that the documents are not available because the documents are destroyed by termite, whereas, on the other hand, the petitioner has placed on record a copy of the letter by respondent No.3, which reflects 6th February, 1996 as the date when the letter was addressed to respondent No.3, to support her claim that her application was forwarded by respondent No.3 to respondent No.2;
(j) However, submission of copy of the said letter on record of this petition gives rise to a doubt about its genuineness and also gives rise to the question as to how the said letter came in the hands of the petitioner. It is not her case that she received letter from respondent No.2 or respondent No.1 in response to her application under RTI Act. It is also not her case that she received the said letter from respondent No.3 or that when 24 C/SCA/21069/2015 ORDER the said letter was allegedly forwarded to respondent No.2, a copy thereof was marked to her (i.e. the petitioner) as well. In absence of such details, the possession of the letter with the petitioner raises questions and doubt because the respondent No.3 claims that any documents are not available since they are destroyed by termite and said respondent from this proceeding (it has preferred to not file affidavit);
(k) Interestingly, rather curiously, the petitioner does not seem to have ever pursued her application after she allegedly submitted request in 1996 (i.e. for almost 20 years);
(l) She does not appear to have made any inquiry about the progress in matter of her request either with respondent No.3 or with respondent No.2. Having remained passive and inactive from 1996 to 2015, the petitioner, after almost 20 years, woke up and filed present petition;
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(m) In the interregnum, almost 5 years after the petitioner allegedly submitted the application, the State Government cancelled the policy to grant appointment on compassionate basis and instead, in July 2011, Government introduced the policy to pay lump sum compensation. Till then, the petitioner had never pursued her application which was allegedly submitted in 1996;
(n) Interestingly, even after introduction of new policy, it was not the petitioner who took the first step;
(o) Curiously, respondent No.3, without consent of the petitioner and without authorisation by the petitioner, on its own motion, forwarded a request to respondent No.2 to pay lump sum compensation to the petitioner.
(p) It was, interestingly, almost one year after the respondent No.3 took the step on 26 C/SCA/21069/2015 ORDER its own motion, that the petitioner approached the authority with request for lump sum compensation;
(q) The respondent No.3 has not cared to explain the reason as to why respondent No.3 took initiative of submitting request for lump sum compensation, that too without consent of the petitioner and without any authorisation by the petitioner and without the declaration by the petitioner that she is ready and willing to accept lump sum compensation instead of appointment on compassionate ground;
(r) There is no material on record to establish that the signature on the document, i.e. letter dated 6.2.1996 is of the person who held office of Principal in 1996. The alleged / socalled author of the letter has not filed affidavit and not declared that he addressed said letter and he had forwarded the application. Any affidavit recognising 27 C/SCA/21069/2015 ORDER the signature and/or accepting the said document as the official communication by respondent No.3 to respondent No.2, is not filed.
48. Conjoint reading of above mentioned issues, which arise from the material available and in absence of relevant material on record, not only give rise to several issues of disputed facts (which would necessitate documentary and oral evidence including crossexamination) but, in light of above mentioned issues as well as other issues which arise in present case, the case set up by the petitioner as well as the details mentioned in the petition do not inspire confidence.
48.1 The said aspects raise a cloud of doubt over the petitioner's bona fides and about genuineness of her claim and they do not convince the Court to hold that this is a fit case to exercise prerogative writ jurisdiction.
28 C/SCA/21069/2015 ORDER 48.2 Actually, in light of the facts of present case, the petitioner should avail ordinary civil remedy (e.g. civil suit) so as to seek declaration and consequential relief before appropriate forum where the disputed aspects can be established with cogent and sufficient evidence.
49. Besides above mentioned aspects, this Court, having regard to the fact that the petitioner has raised the claim and initiated present proceedings, almost 20 years after the sad demise of the employee, is, even otherwise, not inclined to entertain present proceedings and exercise prerogative writ jurisdiction.
50. Having regard to above mentioned aspects and the reasons mentioned above, this Court is not inclined to entertain this petition. The petitioner, if she wants to pursue her claim, despite passage of more than 20 years, then th petitioner may do so before alternative remedy and appropriate forum, in accordance with law. 29 C/SCA/21069/2015 ORDER
51. It is clarified that the observations made hereinabove with regard to issues of disputed facts are mentioned only illustratively to demonstrate that the petition involves issues of facts which are not capable of adjudication and determination in writ jurisdiction. However, the said narration should not be construed as expression of opinion of this Court on merits with regard to the said or other issues involved in present case. It is clarified that this Court has not expressed any opinion with regard to merits of the petitioner's claim and/or its maintainability.
With the aforesaid clarifications and observations, the petition is disposed of.
(K.M.THAKER, J) BHARAT 30