Telangana High Court
V Mangapathi And 2 Others vs Sri Ajay Misra, Ias And 7 Others on 27 January, 2021
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
I.A.No.1 of 2018 in WPMP.No.55484 of 2016 (I.A.No.1 of 2016) in
W.P.No.45011 of 2016
and
Writ Petition No.45011 of 2016;
Contempt Case No.2803 of 2018 in WPMP.No.55484 of 2016
(I.A.No.1 of 2016) in W.P.No.45011 of 2016;
and
Contempt Case No.1016 of 2019 in WPMP.No.55484 of 2016
(I.A.No.1 of 2016) in W.P.No.45011 of 2016
COMMON ORDER :
All the petitioners were appointed as Forester/Forest Section Officer in the Department of Environment, Forests, Science and Technology of the erstwhile composite State of Andhra Pradesh vide Rc.No.1807/2002/V5 dt.30.06.2007 issued by the then Divisional Forest Officer, Bhadrachalam (South) Division. They all belong to the Scheduled Tribe Community.
2. Their services were regularized in the said category vide Rc.No.2087/2009/V5 dt.18.09.2010 w.e.f. 03.08.2007 by the Divisional Forest Officer, Bhadrachalam (South) Division.
3. The composite State of Andhra Pradesh was bifurcated into the new State of Telangana and the residuary State of Andhra Pradesh w.e.f. 02.06.2014 by the A.P. Reorganisation Act, 2014.
4. Consequent thereto, 7 Mandals of the Khammam District of the composite State of Andhra Pradesh by name Kunavaram, Chintur, VR ::2::
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cc_2803_2018 & cc_1016_2019 Puram, Kukkunuru, Bhadrachalam, Velairpadu and Burgampahad were transferred to the East Godavari and West Godavari Districts of the residuary State of Andhra Pradesh.
5. The Bhadrachalam (South) Division Office, where the petitioners were working, was running its operations in respect of these 7 Mandals prior to the bifurcation of the State.
6. There were 2173 different category of employees in various Government Departments working in these Mandals of the erstwhile Khammam District prior to 02.06.2014.
7. In order to adjust these persons, of whom 585 expressed willingness to work in the residuary State of Andhra Pradesh, and remaining 1588 expressed willingness to work in the new State of Telangana, the Government of Telangana issued G.O.Ms.No.130, General Administration (SR) Department, dt.19.03.2015 which provided in Clause 6 thereof as under:
"(a) If any employee belongs to any one of these Mandals he / she should be continued in Andhra Pradesh;
(b) Based on options from amongst the remaining employees, only those who belong to Telangana must be taken back and adjusted against vacancies. If there is any surplus, supernumerary posts would be created for them to be adjusted against future vacancies in the Zone or District." (emphasis supplied)
8. Likewise State of Andhra Pradesh also issued G.O.Ms.No.68, General Administration Department, dt.20th May, 2015.
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cc_2803_2018 & cc_1016_2019
9. The District Collector, Khammam on 21.02.2015 addressed a letter to all the Heads of Departments in Khammam District asking them to submit details of employees working under their control in a proforma enclosed along with their local status and options.
10. Option forms were circulated to all employees and petitioners opted for the State of Telangana since their education from Classes I to X was in the geographical area falling under the new State of Telangana and they would have the "local status" of the said State as per the A.P. Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 also referred to as the "Presidential Order" issued under Article 371D of the Constitution of India.
11. On 28.04.2015 the Principal Chief Conservator of Forests, State of Telangana addressed a letter Rc.No.9970/2014/EE-2 dt.28.04.2015 to the Principal Secretary to Government, Environment, Forests, Science and Technology Department, Hyderabad seeking adjustment of employees who were natives of the State of Telangana by creating supernumerary posts to adjust them. In para no.4(i) of the said letter, he stated :
"In respect of Bhadrachalam (South) Division, which is entirely with Andhra Pradesh after bifurcation, the employees native of Telangana have to be adjusted in the vacancies available in the other divisions in Khammam District; and for the excess employees supernumerary posts are to be created in other divisions of Khammam Circle as given in the Table in Annexure - I."
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cc_2803_2018 & cc_1016_2019
12. In respect of Bhadrachalam (South) Division, total of 15 supernumerary posts of Forest Section Officers were requested to be created for adjusting the personnel.
13. On 06.06.2015, the Principal Chief Conservator of Forests, State of A.P. addressed letters to the Conservator of Forests, Rajahmundry, State of A.P. to transfer personnel who got local status of Telangana to the State of Telangana.
14. Since petitioners were all natives of Telangana as per the local status determined under the Presidential Order, 1975, they were all asked to report before the Conservator of Forests, Khammam.
15. On 11.08.2015, the 1st petitioner was then asked to report to Forest Range Officer, Ramavaram, the 2nd petitioner was asked to report to Forest Range Officer, Yellandu and the 3rd petitioner was asked to report to Forest Range Officer, Kothagudem Range and the petitioners reported as directed.
16. While so, the Principal Chief Conservator of Forests, Telangana issued Proceedings Rc.No.9970/2014/EE-2 dt.29.10.2015 directing that an undertaking should be taken from all the staff to the effect that he or she agreed to occupy the junior most position in the cadre of that Division on the date of such adjustment in the vacancy and they will not claim seniority on the basis of order of merit at the time of their recruitment. Petitioners did not give the said undertaking.
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cc_2803_2018 & cc_1016_2019
17. On 28.01.2016, the Principal Chief Conservator of Forests reiterated the same in a Letter Ref.No.9970/2014-EE.2(ii) addressed to the Conservator of Forests, Khammam Circle.
18. Thereafter, posting orders were issued vide Proceedings Rc.No.615/2014-M2 dt.10.02.2016 to each of the petitioners incorporating the condition that they would occupy the junior most position in seniority in the category of Forest Section Officer in the respective Divisions of Khammam Circle.
19. Petitioners have challenged these 3 Proceedings dt.29.10.2015, 28.01.2016 and 10.02.2016 in this Writ Petition.
20. They contend that they cannot be compelled to take the junior most position in the seniority in the category of Forest Section Officers in the Division of the Khammam Circle where they are posted from 11.08.2015 and it would be violative of Articles 14, 16 and 21 of the Constitution of India. According to them, through an Executive Order/Instructions the status of the petitioners cannot be changed and such Instructions cannot be contrary to the Presidential Order, 1975 and the provisions of the A.P. Reorganisation Act, 2014. They allege that as per State and Subordinate Service Rules, seniority is to be counted from the date of their appointment and the seniority of direct recruits is to be counted as per their ranking obtained at the time of selection. According to them, they had to be allotted to the State of Telangana because of transfer of the 7 Mandals of Khammam ::6::
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cc_2803_2018 & cc_1016_2019 District to the State of Andhra Pradesh after 02.06.2014 and it was not a case of transfer on request for which seniority can be denied. Petitioners contend that the respondents have shown petitioners as junior most below all the existing Forest Section Officers and their chances of getting a promotion to the next higher post of Deputy Range Officer have been diminished. They therefore seek a declaration that they are entitled to retain their seniority as Forest Section Officers from 01.08.2007, the date of their initial appointment with all consequential benefits. WP.M.P.No.55484 of 2016 (I.A.No.1 of 2016) in W.P.No.45011 of 2016
21. The petitioners had filed WPMP.No.55484 of 2016 (I.A.No.1 of 2016) in Writ Petition No.45011 of 2016 to suspend the operation of the orders passed by the 2nd respondent in R.C.No.9970 of 2019 / AA2 / dt.29.10.2015 along with undertaking and also Orders in Ref.No.9970 / 2014 - EE2 (ii) dt.28.01.2016 compelling them to take last Rank in the seniority category of Forest Section Offices in their respective divisions of Khammam Circle, pending disposal of the Writ Petition.
22. On 22.12.2016, interim suspension was granted recording that the post of petitioners in the State of Telangana was not by way of request transfer, but was on account of bifurcation of the composite State of Andhra Pradesh as per the Andhra Pradesh Re-Organization Act, 2014.
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cc_2803_2018 & cc_1016_2019 I.A.No.1 of 2018 in WPMP.No.55484 of 2016 (I.A.No.1 of 2016) in WP.No.45011 of 2016
23. I.A.No.1 of 2018 was filed by respondents to vacate the order dt.22.12.2016 passed in WPMP.No.55484 of 2016 (I.A.No.1 of 2016) in W.P.No.45011 of 2016.
Counter-affidavit of respondents :
24. It is admitted in the counter-affidavit filed by respondents that petitioners are treated as 'local' candidates as far as Khammam District is concerned in view of the places where they studied and secured educational qualifications, and that because they belong to 'local' cadre they were regarded as 'Forester' in Bhadrachalam (South) Division; that as per Special Service Rules in the Forest Sub- Ordinate Service, Division is the unit for recruitment and discharge of a Forestor; there could be more than one Division in a District; and so a candidate appointed in a particular unit, i.e., Division, will have rights with regard to his service in that particular unit only but not in the entire District; unlike other Departments where recruitment to local cadre is based treating the entire District as a unit by virtue of Special Service Rules, the position in the Forest Department is different.
25. Therefore, petitioners would have no claim for seniority over those recruited in other Division and all their claims would be confined to their particular unit only; that bifurcation of the erstwhile composite State of Andhra Pradesh into separate State of Telangana ::8::
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cc_2803_2018 & cc_1016_2019 and the new State of Andhra Pradesh did not effect employees in other parts of Khammam District, but it affected those working in the 7 Mandals which were to be transferred to East and West Godavari Districts of State of Andhra Pradesh.
26. It is contended that since these 7 Mandals were transferred to the State of Andhra Pradesh, they should have been allotted to that State only, and the question of nativity was not relevant. But as per G.O.Ms.No.130 General Administration Department dt.19.03.2015, it was made clear in Clause 6(a) that those persons having nativity and belonging to any one of the 7 Mandals should continue in Andhra Pradesh State, and since petitioners did not fall in this category, Clause 6(b) is applicable to them; that under the said Clause 6(b), those belonging to Telangana would be taken back and adjusted in available vacancies or in supernumerary posts based on options; that no pressure was exerted and only those willing were transferred to Telangana State.
27. It is contended that petitioners had given option for allotment to the State of Telangana, and there were no specific orders issued for their repatriation, but authorities of Andhra Pradesh State hurriedly relieved petitioners without appreciating G.O.Ms.No.130 dt.19.03.2015, issued by the State of Telangana; that as per Para No.6(b), only such of the employees who gave options are to be repatriated, but on representation of Conservator of Forests, ::9::
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cc_2803_2018 & cc_1016_2019 Khammam, petitioners were absorbed in Telangana subject to issuance of final orders.
28. It is stated that the Principal Chief Conservator of Forests, Khammam examined the matter in its entirety, and keeping in view the guidelines of the Government in para no.6(b) and the G.O.Ms.No.130 dt.19.03.2015, agreed for absorption, but directed that employees must give an undertaking to accept Junior-most position in the Division where they stand posted, and this was done to protect the interests of those in the Seniority-List of that Division.
29. It was further contended by the respondents in the counter- affidavit that as per the provision of Rule 35 of State and Subordinate Service Rules, seniority would be determined; that when supernumerary posts was created, specific orders issued to each individual earmarking place of allotment was subject to condition that they should take the last Rank in the Seniority; and so the impugned order dt.16.02.2016 issued by the Conservator of Forests, Khammam, is correct.
30. It is contended that on receipt of the interim order passed in the Writ Petition, a letter was addressed to the State Government on 17.01.2017 by the Principal Chief Conservator of Forests, Telangana that the State Government through its Principal Secretary, Environment, Forests and Science and Technology clarified and Memo No.2079 / FOR.II (i) / 2015 dt.10.04.2018 was issued stating ::10::
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cc_2803_2018 & cc_1016_2019 that individuals who were transferred from Andhra Pradesh to Telangana on inter-State transfer, on request, cannot claim seniority over employees of State of Telangana. Consideration by the Court
31. I have noted the contentions of both sides.
32. From the facts narrated above, it is clear that the petitioners are natives of the State of Telangana and have local status of the said State as per the Presidential Order, 1975.
33. They were recruited in Bhadrachalam (South) Division of the erstwhile Khammam District of the composite State of Andhra Pradesh in 2007 as Foresters/Forest Section Officers.
34. After the bifurcation of the composite State of Andhra Pradesh, 7 Mandals of the erstwhile Khammam District were merged with the East and West Godavari Districts of the residuary State of Andhra Pradesh and the Bhadrachalam (South) Division was running operations in these 7 Mandals up to that date.
35. The State of Telangana decided to retain employees of Telangana nativity in the State of Telangana and issued G.O.Ms.No.130, General Administration Department, dt.19.03.2015 to if necessary even create supernumerary posts to accommodate such persons. Thereafter, 15 new posts of Forest Section Officers were created in the Khammam District which remained in the State of ::11::
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cc_2803_2018 & cc_1016_2019 Telangana on 28.04.2015 and petitioners were accommodated in these posts w.e.f. 11.08.2015.
36. The question is :
"whether petitioners' seniority in their current place of posting was rightly fixed as junior most in the Division by the respondents?"
37. The post of Forester/Forest Range Officer is covered by the A.P. Forest Subordinate Services Rules, 2000 and is Class A, Category 2 post.
38. Rule 10 of the said Rules states that for the purpose of recruitment, appointment, discharge for want of vacancy, reappointment, seniority, promotion, transfer and posting and appointment as full member as regards "Forester" post, the unit of appointment is concerned Territorial Forest Division.
39. Rule 11 states:
"Rule 11. Seniority :--(a) Seniority of persons, if transferred on administrative grounds from one unit to other, his seniority will be fixed with reference to his date of first appointment in the former unit. (b) Seniority of a person if transferred on his request will be fixed with reference to the date of joining in the latter unit, if he is probationer he shall take the last rank among the probationers, and if he is an approved probationer, he shall take the last rank among the approved probationers."
40. Rule 35 of the A.P. State and Subordinate Service Rules is on similar lines and it states:
::12::
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cc_2803_2018 & cc_1016_2019 "35. Fixation of seniority in the case of transfers on request or on administrative grounds :--(a) The seniority of a member of a service, class or category transferred from one unit of appointment to another unit of appointment, on administrative grounds, shall be, determined with reference to the date of seniority of such member in the former unit.
(b) The seniority of a member of a service, class of category, who is transferred on his own request from one unit of appointment to another unit of appointment shall be fixed with reference to the date of his joining duty in the latter unit of appointment."
41. Admittedly, a decision was taken by the State of Telangana by issuing G.O.Ms.No.130 General Administration (SR) Department dt.19.03.2015 to take back persons like the petitioners who belong to Telangana, and who are willing to work in the State of Telangana as per their options, consequent on the allocation of the 7 Mandals in Khammam District of the composite State of Andhra Pradesh to the residuary State of Andhra Pradesh under the A.P. Re-organization Act, 2014, and adjust them in the existing vacancies or by creating supernumerary posts.
42. The intention of the Government of Telangana was obviously to protect employees of Telangana nativity like the petitioners who were working in the Bhadrachalam (South) Division of the Forest Department by accommodating them in the State of Telangana and ensure that they are not forced to work in the State of Andhra Pradesh.
43. It is consequent to the said decision that proposals to create supernumerary posts were submitted by the Principal Chief Conservator of Forests (HoFF), State of Telangana to the Principal ::13::
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cc_2803_2018 & cc_1016_2019 Secretary to Government, Environment, Forests, Science and Technology Department, Secretariat, Hyderabad vide R.C.No.9970 / 2014 / EE2 - 28.04.2015. Thereafter, such posts were created and petitioners were relieved from their places of work on 06.08.2015, 05.08.2015 and 04.08.2015 and asked to report to the Conservator of Forests, Khammam Circle. Later, on 11.08.2015, the 1st petitioner was asked to report to the Forest Range Officer, Ramavaram, the 2nd petitioner was asked to report to Forest Range Officer, Yellandu, and the 3rd petitioner was asked to report to the Forest Range Officer, Kothagudem Range, respectively.
44. Vide G.OMs.No.3 Finance (HRM-1) Department, dt.19.01.2016, 18 posts of Forest Section Officer were created and on 10.02.2016 postings were given in such supernumerary posts to each of the petitioners vide proceedings No.615 /2014 - M2 dt.10.02.2016 by the Conservator of Forests, Khammam Circle.
45. In my opinion, since all this happened pursuant to the policy decision taken vide G.O.Ms.No.130 General Administration (SR) Department dt.19.03.2015 by the Government of Telangana to ensure that people of Telangana nativity working in the 7 Mandals of the Khammam District where the Bhadrachalam (South) Division was operating continued to work in the State of Telangana only, and they do not get allotted to the State of Andhra Pradesh because of the merger of the 7 Mandals in the East Godavari and West Godavari Districts of residuary State of Andhra Pradesh, it cannot be said that ::14::
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cc_2803_2018 & cc_1016_2019 this amounts to 'transfer on request' of the petitioners to which Sub- Rule (b) of Rule 11 of the A.P. Forest Subordinate Service Rules applies. It has to be construed as a 'transfer on administrative grounds' which would fall in Sub-Rule (a) of Rule 11.
46. The fact that petitioners gave given option for the State of Telangana cannot be construed as a 'transfer' sought on request to the State of Telangana because the process was not one of 'transfer' at all, but is essentially repatriation to the State of Telangana of persons of Telangana nativity who would otherwise have to work in the State of Andhra Pradesh on the transfer of the 7 Mandals of Khammam District to the said State under the A.P. Reorganization Act, 2014.
47. I do not accept the plea of respondents that :
(a) as per Special Service Rules in the Forest Sub-Ordinate Service, Division is the unit for recruitment and discharge of a Forestor;
(b) there could be more than one Division in a District;
(c) and so a candidate appointed in a particular unit, i.e., Division, will have rights with regard to his service in that particular unit only but not in the entire District; and
(d) unlike other Departments where recruitment to local cadre is based treating the entire District as a unit by virtue of ::15::
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cc_2803_2018 & cc_1016_2019 Special Service Rules, the position in the Forest Department is different.
48. The above principles would have no application in the facts and circumstances of the case and Rule 33(a) of the A.P. State and Subordinate Service Rules which directs that seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade.
49. Consequently, petitioners' seniority has to be fixed with reference to their date of first appointment, i.e., 03.08.2007 and it is not permissible for the respondents to compel the petitioners to give up the seniority which they have earned by imposing a condition that they give up such seniority and agree to occupy the junior-most position in the Unit to which they have been repatriated and adjusted in the supernumerary posts created for the said purpose as was done by the Principal Chief Conservator of Forests (HoFF), Telangana, Hyderabad in proceedings R.C.No.9970 / 2014 / EE2 dt.29.10.2015 and proceedings Ref.No.9970 / 2014 - EE.2(ii) dt.28.01.2016 and by the Conservator of Forests, Khammam Circle, Khammam in his proceedings No.615 / 2014 - M2 dt.10.02.2016 .
50. Accordingly, the Writ Petition is allowed; and the condition imposed by the Principal Chief Conservator of Forests (HoFF), Telangana, Hyderabad in proceedings R.C.No.9970 / 2014 / EE2 ::16::
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cc_2803_2018 & cc_1016_2019 dt.29.10.2015 and proceedings Ref.No.9970 / 2014 - EE.2(ii) dt.28.01.2016 and by the Conservator of Forests, Khammam Circle, Khammam in his proceedings No.615 / 2014 - M2 dt.10.02.2016 that petitioners should agree to occupy the junior-most position in the Unit to which they have been repatriated and adjusted in the supernumerary posts created for the said purpose, is declared as violative of Article 14 of the Constitution of India and the A.P. Forest Subordinate Service Rules, and is set aside. It is declared that petitioners are entitled to get seniority from the date of their initial appointment as Forest Section Officers from 03.08.2007 with all consequential benefits and they should be given the said benefits by the respondents within six weeks from the date of receipt of copy of the order.
Consequently, I.A.No.1 of 2018 filed by the respondents to vacate the order dt.22.12.2016 in WPMP.No.55484 of 2016 in the Writ Petition is dismissed, and the said order is made absolute. No costs. CC.No.2803 of 2018
51. Petitioners have filed this Contempt Case alleging willful disobedience of the interim order dt.22.12.2016 in WPMP.No.55484 of 2016 in WP.No.45011 of 2016 contending that Memo No.2079 / FOR.II(1) / 2015 dt.10.04.2018 was issued by the Special Chief Secretary to Government, (FAC), Government of Telangana, Environment, Forests, Science and Technology (1st respondent in the C.C.), rejecting representation of the 2nd petitioner to restore his ::17::
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cc_2803_2018 & cc_1016_2019 seniority in the provisional seniority list by taking his date of appointment as 01.08.2007.
52. Petitioners also contend that in the provisional seniority list dt.22.02.2018 of Forest Section Officers working in Khammam Division as on 01.01.2018 prepared by the Forest Divisional Officer, Khammam, petitioner No.1 is shown at Serial No.29 below persons appointed after 01.08.2007; that in the provisional seniority list dt.26.02.2018 of Forest Section Officers working in Kothagudem Division as on 01.01.2018 prepared by the Forest Divisional Officer, Kothagudem, petitioner No.2 is shown at Serial No.31 and petitioner no.3 is shown at Serial No.30, much below the persons appointed after 01.08.2007; and that the interim orders granted by this Court on 22.12.2016 in WPMP.No.55484 of 2016 could not have been flouted by the respondents.
CC.No.1016 of 2019
53. This Contempt Case is filed by the petitioners contending that the State Government had issued G.O.Ms.No.154 Finance Department dt.14.09.2018 upgrading 124 positions of Forest Section Officers to that of Dy. Range Officers; that the Conservator of Forests, Khammam Circle prepared a list of 34 eligible candidates for such upgradation; in that list, Serial Nos.1 to 6 are persons seniors to petitioners as per petitioners' date of appointment, but persons at Serial Nos.7 to 34 were all juniors who were appointed between 2008 to 2017. It is contended that thereafter proceedings were issued in ::18::
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cc_2803_2018 & cc_1016_2019 R.C.No.08 / 2019 - M.2 dt.28.05.2019 promotions were effected to the post of Dy. Range Officers, but petitioners were denied the upgradation / promotion and representation dt.28.05.2019 filed by petitioners was ignored by respondents.
54. It is no doubt true that on 10.04.2018 orders were passed by the 1st respondent in the Contempt Case No.2803 of 2018 in Memo No.2079 / FOR.II(1) / 2015 dt.10.04.2018 rejecting petitioners' representation and the Chief Conservator of Forests, State of Telangana / FAC Conservator of Forests, Khammam Circle, Khammam (3rd and 4th respondents) issued proceedings RC.No.08 / 2019 - M.2 dt.28.05.2019 promoting several of petitioners' juniors / upgrading them as Dy. Range Officers contrary to the interim order dt.22.12.2016 in WPMP.No.55484 of 2016 in Writ Petition No.45011 of 2016.
55. However, regarding to the fact that I.A.No.1 of 2018 filed to vacate the above interim order was pending, and came to be decided today only, it cannot be said that there is any willful disobedience of the order dt.22.12.2018 in WPMP.No.55484 of 2018 in WP.No.45011 of 2016.
56. Now that the said interim order is made absolute and the Writ Petition No.45011 of 2016 has been allowed, the Memo No.2079 / FOR.II(1) / 2015 dt.10.04.2018 passed by the 1st respondent in C.C.No.2803 of 2018 is set aside; and the respondents are granted six ::19::
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cc_2803_2018 & cc_1016_2019 weeks from the date of receipt of copy of this order to comply with the same and also consider the case of petitioners for upgradation / promotion as Dy. Range Officers by recalling the proceedings RC.No.08 / 2019 - M.2 dt.28.05.2019, passed by the 3rd and 4th respondents.
57. The Contempt Cases are disposed of accordingly. No costs.
58. As a sequel, miscellaneous petitions pending if any in this Writ Petition and Contempt Cases, shall stand closed.
__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 27.01.2021 Ndr