Andhra Pradesh High Court - Amravati
Ms. P. Shobha Rani vs The State Of Andhra Pradesh on 8 July, 2022
1
*HON'BLE SRI JUSTICE RAVI NATH TILHARI
+WRIT PETITION No.6715 OF 2019
%08.07.2022
#Smt.P.Shobha Rani
......Petitioner
And:
$1. State of Andhra Pradesh, Rep. by its
Principal Secretary, Revenue
Department, Secretariat, Velagapudi,
Amaravathi and others.
....Respondents
!Counsel for the petitioner : Sri T. Vijay Hanuman Singh
^Counsel for the respondents : Government Pleader for Services-I
<Gist:
>Head Note:
? Cases referred:
1
1997 (7) SCC 463
1
(2022)1 SCC 294
2
HON'BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No.6715 OF 2019
Between:
#Smt.P.Shobha Rani
......Petitioner
And:
$1. State of Andhra Pradesh, Rep. by its
Principal Secretary, Revenue
Department, Secretariat, Velagapudi,
Amaravathi and others.
....Respondents
DATE OF JUDGMENT PRONOUNCED: 08.07.2022.
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
1. Whether Reporters of Local newspapers may Yes/No
be allowed to see the Judgments?
2. Whether the copies of judgment may be marked
to Law Reporters/Journals?
Yes/No
3. Whether Your Lordships wish to see the fair
Copy of the Judgment? Yes/No
__________________________
RAVI NATH TILHARI, J
3
HON'BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION NO.6715 OF 2019
ORDER:
Heard Sri T. Vijay Hanuman Singh, learned counsel for the petitioner and Sri M. Srinivas Rao, learned Assistant Government Pleader for respondent Nos.1 to 3 and perused the material on record.
2. The petitioner's husband Late Sri P. Vijayabhaskara Reddy, having died during the service period, the petitioner was appointed as Typist under the scheme of Compassionate Appointment vide the proceedings of the Collector, Anantapur in Rc.No.A3/1396/2008 dated 18.08.2010. The petitioner had passed intermediate and was having Lower Grade in Typewriting-Telugu at the time of her appointment. The appointment was with a condition to complete Typewriting Higher grade in Telugu within two (02) years from the date of appointment order. The petitioner joined on 26.08.2010 and continued as typist, however she could not complete the Typewriting Higher Grade in Telugu within the specified period of two (02) years.
3. The petitioner was served with a Show Cause Notice, vide Rc.No.A2/5939/2016 dated 26.11.2016, to offer the explanation as to why she should not be reverted to the lower rank i.e., the post of attender/office subordinate for not acquiring the requisite qualification (i.e., Telugu Typewriting Higher Grade) within time to 4 which she submitted reply on 21.12.2016, explaining the compelling circumstances under which she could not acquire the qualification of Typewriting Higher Grade in Telugu and requested for conversion of her post to Junior Assistant. However, no orders were passed pursuant to the Show Cause Notice and the petitioner continued as typist.
4. In the meantime, on 13.04.2017, the petitioner acquired the requisite qualification of Typewriting Higher Grade in Telugu and submitted certificate to the Tahsildar, Atmakur, who forwarded the same to the District Collector, Ananthapuramu/R3, vide Rc.C/222/2017, to consider the petitioner‟s case sympathetically, declaring her probation from the date of acquiring the requisite qualification to enable her to get annual periodical increments.
5. The petitioner received Final Notice bearing Rc.No.A2/5939/2016 dated 08.05.2019, directing the petitioner to submit her willingness to take the lower post of attender/office subordinate within one week failing which, it provided that it shall be construed that there were no compelling reasons of poverty and the petitioner should be discharged from the service.
6. The petitioner filed her reply on 20.05.2019, submitting that the Final Notice dated 08.05.2019 was issued without taking into account that the petitioner acquired requisite qualification in the year 2017 and in respect thereof the certificate was already submitted and duly recorded in her service book. After acquiring the requisite qualification the Final Notice should not have been issued. She submitted that she was holding the basic qualification of 5 intermediate prescribed for the post of Junior Assistant and in spite of the fact that many vacancies of Junior Assistant post were existing, she was not given appointment on such post but was given appointment in the post of Typist with condition imposed to acquire qualification of Typewriting Higher Grade Telugu.
7. The petitioner filed present Writ Petition No.6715 of 2019, challenging the final notice.
8. Vide interim order dated 27.06.2019, the impugned Final Notice was suspended and on 28.11.2019, the interim order was extended until further orders. The petitioner is continuing in the post of Typist.
9. Sri T. Vijay Hanuman Singh, learned counsel for the petitioner submits that after the petitioner acquired the qualification of Telugu Typewriting Higher Grade in the year 2017 during her service as typist, though after prescribed years, but as any final order was not passed pursuant to the first notice dated 26.11.2016, the issuance of the Final Notice is illegal and cannot be sustained. The Respondent No.3 ought to have considered that the petitioner possessed the requisite qualification for the post of typist on the date of issuance of the Final Notice.
10. Sri T. Vijay Hanuman Singh further submits that at the time the petitioner was given compassionate appointment she possessed the requisite qualification for the post of „Junior Assistant‟ but in spite thereof she was given appointment on the post of „typist‟ with the condition that she shall acquire the requisite qualification of 6 Telugu Typewriting Higher Grade within a period of two (02) years. If the petitioner had been given the compassionate appointment, as per her qualification, and not on the post of typist, this situation would not have arisen. Now, pursuant to the final notice she is being reverted to the lower post of „Attender‟ causing irreparable loss to her as regards salary as also status, although she has acquired qualification of the post of typist even before issuance of the impugned notice.
11. Learned Government Pleader submits that the G.O.Ms.no.969, dated 27.10.1995, provides that if the dependent of the deceased Government employees, fails to acquire the requisite qualification of Telugu Typewriting Higher Grade within the stipulated period, he/she may be given a further period for such acquisition of qualification but the petitioner failed to acquire the requisite qualification within the prescribed period of two years and also within the further grace period and acquired such qualification after six years only. The impugned notice was rightly given to the petitioner to revert her to the post of attender as per rule in force.
12. I have considered the submissions advanced by the learned counsels for the parties and perused the material on record.
13. The facts not in dispute are that the petitioner was appointed on compassionate ground. At that time she was qualified to the post of Junior Clerk, however, she was given compassionate appointment on the post of typist for which she did not possess the Typewriting qualification of Telugu Higher Grade. She could not acquire the typewriting qualification of Telugu Higher Grade within a period of 5 7 years from the date of her appointment but acquired such qualification on 13.04.2017, with respect to which the certificate was submitted before the Tahsildar, duly forwarded to the Collector. The earlier Show Cause Notice was given to the petitioner at a time when she did not acquire the required qualification but pursuant to the said Show Cause Notice, no orders were passed by the respondents; and when the impugned notice was given i.e., the final notice, by that time the petitioner had acquired the requisite qualification. It is also not in dispute that under the interim orders passed by this Court, the petitioner was continued in the post of typist and is still continuing on such post of typist.
14. G.O.Ms.No.612, dated 30.10.1991 reads as under:
GOVERNMENT OF ANDHRA PRADESH ABSTRACT Public Services - Subordinate Services - Scheme of compassionate appoints to the dependents of deceased Government employees - Further instructions issued.
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GENERAL ADMINISTRATION (SERVICES-A) DEPARTMENT G.O.Ms.No.612 Dated the 30th October, 1991 Read the following:-
1. G.O.Ms.No.687, General Administration (Ser.A) Dept., dated 3rd October, 1997.
2. Memo. No.618/Ser.A/78-11, G.A.D., dated 17th December, 1979.
3. Memo No.504, G.A.(Ser.A) Dept., dt.30.07.1980. 8
4. Memo No.2047/Ser.A/83-1, General Administration Department, dated 10-10-1983.
*** ORDER:
The G.O. first read above lays down the procedure to be followed in providing immediate permanent relief to the family of a Government employee who dies in harness by appointing his son/daughter/spouse without the media of Employment Exchange, subject to certain conditions specified therein as also in various orders issued from time to time, as a social security measure. Certain points raised subsequently regarding relaxation of educational qualifications, age for appointment and the time limit for submission of applications etc., have been clarified in the Memo second read above. Instructions have also been issued in the Memo fourth read above that no application for relaxation of any of the conditions in respect of appointment of the dependents of deceased Government servants to the posts other than the posts in the Last Grade Service should be entertained.
2. Inspite of the above instructions, certain types of cases are being referred to General Administration (Services) Department either for clarification or for relaxation of the conditions stipulated in the orders governing the appointments made under the social security scheme as also under the medical invalidation scheme formulated in the G.O. third read above. The Government have examined these cases and the following orders are issued in modification of orders issued from time to time wherever they are inconsistent with those orders:-
(i) The younger brother/sister of the deceased Government servant who remained unmarried can be considered for appointment under the scheme, provided there is no other earning member in the family. The cases which came up for consideration earlier need not be re-opened. 9
(ii) The adopted son or daughter of the deceased Government Servant may be considered for appointment, if the adoption had taken place legally, atleast five years prior to the date of demise of the Government Servant.
(iii) Where one deceased employee does not have any male child but leaves behind him a married daughter and an unmarried minor daughter, the choice of selecting one of them for appointment under the social security scheme shall be left to the mother.
(iv) If the dependents of the deceased employees are eligible to be considered for any category of post whose pay is equal or less than that of Junior Assistant (L.D.C) and if they satisfy the qualifications and physical standards prescribed for such posts, they can be considered for posts such as, Police Constable in Home Department, Excise Constable in Excise Department, Helper Grade-I and II in Forest Department, Leading Fireman/Fireman in Fire Service Department etc., In any case, no dependent of the deceased Government employee possessing higher qualifications prescribed for the posts of Assistant Engineers, Assistant Executive Engineers, Civil Assistant Surgeons etc., Shall be considered for appointment to post carrying higher scale of pay such as Assistant Engineers, Assistant Executive Engineers, Civil Assistant Surgeons etc., Since the clerical posts in Education Department/Educational Institutions are a few, the dependents of deceased employees can also be considered for the lowest teaching post i.e., posts at present carrying a scale of pay of Rs.1010-1800, in the Education Department/Educational Institutions, if they satisfy the qualifications prescribed under the rules to hold such posts.
(v) As the object of the social security scheme is to give immediate relief to the distressed family of the deceased Government employee, a minor who does not attain majority within two years as specified in Government Memo No.618/Ser.A/78-11, General Administration Department, dt.17-12-1979 after the demise of the Government employee, shall not be considered for appointment. In such cases it is decided to grant ex-gratia to the 10 widow/dependent of the deceased employee. Orders regarding quantum of ex-
gratia will be issued separately.
(vi) In cases where, Diploma holders who do not possess minimum educational qualifications for appointment as Junior Assistants and who have sought appointment as Junior Assistant are exempt from possessing minimum general educational qualifications, provided the duration of study to acquire such qualifications, (i.e., Diploma) is equivalent to or longer than that Intermediate.
(vii) Where typewriting in English (Higher) and Telugu (Higher) is an essential qualification for appointment to a post, the candidates who do not possess those qualifications may be considered for appointment to such categories of posts subject to the condition that they should acquire such qualifications within two years after such appointment.
(viii) The minimum qualification required to hold the post of Junior Assistant in the Heads of Departments/Directories is Degree and in Subordinate Offices Intermediate. The candidates for compassionate appointment who do not possess the said qualifications can be considered for appointment if they possess atleast Intermediate/Tenth Class qualification respectively, by giving reasonably time to acquire higher qualification prescribed under rules to hold such posts.
3. This order shall come into force with immediate effect.
4. The Government also direct that the present scheme of compassionate appointment of spouse/son/daughter of a Government servant who retire on medical invalidation shall continue without any modification and the orders referred to in the above paras shall not apply to the cases off compassionate appointments on medical invalidation.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) 11 K.V.NATARAJAN CHIEF SECRETARY TO GOVERNMENT
15. The Court finds force in the submission of the learned counsel for the petitioner that if the petitioner had been given compassionate appointment on the post of Junior Assistant for which she was qualified, this position would not have arisen. G.O.Ms.No.612 in para 2(viii) clearly provided that the minimum qualification required to hold the post of Junior Assistant in Sub-ordinate offices was intermediate, which the petitioner possessed. However, the petitioner was given compassionate appointment on the post of Typist, for which the essential qualification was Typewriting in Telugu, Higher Grade whereas the petitioner possessed the qualification of Typewriting in Telugu, Lower Grade.
16. G.O.Ms.No.969, dated 27.10.1995 reads as under:
GOVERNMENT OF ANDHRA PRADESH ABSTRACT Public Services - Subordinate Services Scheme of compassionate appointment to the dependents of deceased Government Employees - Action to be taken against the candidates who fail to acquire the requisite qualification prescribed for the post within the stipulated time under the scheme of compassionate appointment certain clarifications - Issued.
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GENERAL ADMINISTRATION (SERVICES-A) DEPARTMENT G.O.Ms.No.969 Dt. The 27th October, 1995 Read the following:-
1. G.O.Ms.No.612 G.A. (Ser.A) Dept., Dt. 30-10-1991 12
2. G.O.Ms No.577, G.A. (Ser.A) Dept., Dt. 29-10-1993
3. G.O.Ms. No.76, G.A. (Ser.A) Dept., Dt. 15-3-1995 *** ORDER:
In para 2 (vii) of the G.O. first read above, it has been ordered that where Typewriting is an essential qualification to a post the candidates who do not possess these qualifications may be considered for appointment to such categories of posts under the scheme of compassionate appointments, subject to the condition that they should acquire such qualification within two years after such appointment. It was also ordered in para 2(viii) of the said G.O. that the minimum qualification required to hold the post of Junior Assistant in Heads of Departments / Directorates is a Degree and in subordinate offices Intermediate and the candidates for compassionate appointment who do not possess the said qualifications can be considered for appointment, if they possess atleast Intermediate / Tenth Class qualification respectively by giving reasonable time to acquire higher qualification prescribed under rules to hold such post.
2. Subsequently in G.O. Second and third read above, Government have directed that a maximum period of 3 (three) years to acquire Intermediate qualification and 5 (five) years to acquire Degree qualification be allowed in respect of candidates‟ appointed on compensation grounds to the posts of Junior Assistants in Subordinate offices and Heads of Departments and Secretariat as the case may be.
3. Several instances have come to the notice of the Government that Candidates who were appointed without possession the minimum Educational or Typewriting qualifications, under the scheme on compassionate appointment to the dependents of the deceased Government employees, have failed to acquire the requisite qualification within the stipulated period prescribed in the above said G.O.s and subsequently representing for extension of time limit to acquire such qualification. 13
4. Several proposals are also being received from subordinate offices to the Heads of Departments for granting extension of further time limit to acquire requisite qualification beyond the stipulated period. In turn, the Heads of Departments, in individual cases, are seeking clarification from the Government regarding the action to be taken against those candidates who failed to acquire requisite Educational or Typewriting qualification within the time stipulated, besides seeking permission to give extension of time to such candidates for acquiring the requisite qualification.
5. the Government after careful examination of the matter, hereby direct that in cases of dependent of the deceased Government employees, who do not possess the minimum Educational qualification or Typewriting qualification prescribed for the post to which they are appointed with a condition to acquire such requisite qualification within the stipulated period prescribed in the G.O.s. read above, fail to acquire such requisite qualification within that stipulated time, such candidates may be allowed / given a further period of 2 (two) more years over and the above the period prescribed in the G.O.s read above as grace period to acquire such requisite Educational or Typewriting qualification prescribed for the post to which they were appointed.
6. Government also direct that if the candidate concerned fails to acquire the requisite Educational or Type-wrtiting qualifications even within the above extended grace period, then he/she may be considered for appointment for a lower post such as an Attender where such educational or Typewriting qualification is not prescribed and accordingly he / she may be appointed in a lower post such as an Attender as if he/ she is a fresh candidate, after obtaining the willingness of the candidate. If he/she is not willing to take the lower post it shall be treated that there are no compelling reasons of poverty and such candidate be discharged from Service.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) M.S.RAJAEE 14 CHIEF SECRETARY TO GOVERNMENT
17. From perusal of paragraph 6 of G.O.M.S.No.969, dated 27.10.1995, it is evident that even if the educational qualification or the typewriting qualification is not acquired within the extended grace period, the authority may consider for the appointment of the candidate to a lower grade. But it does not necessarily provide for granting fresh appointment on a lower post. In the present case, the final notice was given in the year 2019 and by that time the petitioner had already acquired requisite qualification, which she acquired in the year 2017. In the view of this Court, if the petitioner acquired the Higher Grade Telugu Typewriting qualification, beyond the grace period, but, before giving of the final notice, to ask the petitioner to give willingness to the lower post of attender would be taking too technical a view in the matter. When the first notice was given, the petitioner did not acquire such qualification, but, no order was passed by the respondent giving fresh appointment on a lower post. Further, the petitioner already possessed the lower grade Telugu Typewriting qualification and has been continued as such and after acquiring the Higher Grade Telugu Typewriting qualification, she is still continuing as typist, pursuant to stay on final notice. Now, to ask the petitioner to give willingness for the attender, when she is having the requisite qualification of Higher Grade Typewriting Telugu, would not be reasonable or sound exercise of discretion on the part of the respondents. 15
18. There being power to do a thing and the exercise of such power are two different things. The discretion in exercise of power is required to exercised reasonably and not arbitrarily. Such power is also required to be exercised within a reasonable time which in the present case cannot be, after the petitioner acquired the requisite qualification. The respondents having failed to pass any order pursuant to the first notice their action in issuing the impugned final notice after the petitioner acquired the requisite qualification cannot be legally sustained.
19. In Union of India vs. G. Ganayutham1, the Hon‟ble Apex Court held that to judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator.
1 1997 (7) ScC 463 16
20. Recently in Mohd Mustafa vs. Union of India and others2, the Hon‟ble Apex Court has held as under:
"13. Judicial review may be defined as a Court's power to review the actions of other branches or levels of government; especially the Court's power to invalidate legislative and executive actions as being unconstitutional. Power of judicial review is within the domain of the judiciary to determine the legality of administrative action and the validity of legislations and it aims to protect citizens from abuse and misuse of power by any branch of the State. The power of judicial review is a basic feature of the Constitution of India4. Judicial review has certain inherent limitations. However, it is suited more for adjudication of disputes other than for performing administrative functions. It is for the executive to administer law and the function of the judiciary is to ensure that the Government carries out its duties in accordance with the provisions of the Constitution.
14. The grounds on which administrative action is subject to judicial review are illegality, irrationality and procedural impropriety. The following observations made by Lord Diplock in Council of Civil Service Unions and others v. Minister for Civil Service are apt:
"By „illegality‟ as a ground for judicial review I mean that the decision- maker must understand correctly the law that regulates his decision- making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those 3 Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625 4 Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 5 S.R. Bommai v. Union of India (1994) 3 SCC 1 6 [1985] AC 374 persons, the judges, by whom the judicial power of the state is exercisable. By „irrationality‟ I mean what can by now be succinctly referred to as „Wednesbury unreasonableness‟. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the Court‟s exercise of this role, resort I think is today no longer needed to Viscount Radcliff‟s ingenious explanation in Edwards (Inspector of Taxes) v. Bairstow, of irrationality as a ground for a court‟s reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision makers. "Irrationality" by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review. I have described the third head as "procedural impropriety" rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all".
15. The discretionary power vested in an administrative authority is not absolute and unfettered. In Wednesbury, Lord Greene was of the opinion that discretion must be exercised reasonably. 2 (2022)1 SCC 294 17 Explaining the concept of unreasonableness, Lord Greene stated that a person entrusted with discretion must direct himself properly in law and that he must call his own attention to the matter which he is bound to consider. He observed that the authority must exclude from his consideration matters which are irrelevant to the matter he is to consider. Lord Greene concluded that if an authority does not obey aforementioned rules, he may truly be said, and often is said, to be acting unreasonably.
16. Conditions prompted by extraneous or irrelevant considerations are unreasonable and liable to be set aside by Courts in exercise of its power under judicial review 8. (See: 7 Associated Provincial Picture Houses Ltd v. Wednesbury Corp. [1947] 2 All ER 680 8 Ram Avtar Sharma v. State of Haryana (1985) 3 SCC 189 17 State of U.P. v. Raja Ram Jaiswal 9, Sheonandan Paswan v. State of Bihar & Others10, Sant Raj v. O.P. Singla 11, Padfield v. Minister of Agriculture12). A decision can be arrived at by an authority after considering all relevant factors. If the discretionary power has been exercised in disregard of relevant consideration, the Court will normally hold the action bad in law14. Relevant, germane and valid considerations cannot be ignored or overlooked by an executive authority while taking a decision. It is trite law that Courts in exercise of power under judicial review do not interfere with selections made by expert bodies by reassessing comparative merits of the candidates. Interference with selections is restricted to decisions vitiated by bias, mala fides and contrary to statutory provisions. (See: Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan16, Badrinath v. State of T.N.17, National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman18, Major General I. P. S Dewan v. Union of 9 (1985) 3 SCC 131 10 (1983) 1 SCC 438 11 (1985) 2 SCC 349 12 [1968] 1 All ER 694 13 Sachidanand Pandey v. State of WB, (1987) 2 SCC 295 14 H.W.R. Wade & C.F. Forsyth in the 10th Edition of Administrative Law (2009) 15 C.K. Thakker Administrative Law, Second Edition page 801 16 (1990) 1 SCC 305 17 (2000) 8 SCC 395 18 1992 Supp (2) SCC 481,India19, Union Public Service Commission v. Hiranyalal Dev20, M. V. Thimmaiah v. UPSC 21 and UPSC v. Sathiyapriya22)."
21. When judged in the light of the aforesaid principles, the impugned final notice cannot be legally sustained. The impugned final notice and the proceedings pursuant thereto deserve to be quashed.
22. The petitioner shall be entitled to continue in the post of Typist and the fact that she did not acquire the qualification of Higher Grade Telugu Typewriting within the specified period, would not come in the way of grant of those benefits to her to which she would have been entitled if she had acquired such qualification within the specified period.
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23. The Writ Petition is allowed. The impugned final notice and the proceedings pursuant to the final notice are quashed. The respondents are directed to continue the petitioner in the post of typist with all the service benefits which she would have been entitled to, if the requisite typewriting qualification had been acquired within the specified period.
No order as to costs.
Consequently, miscellaneous petitions, if any, shall stand closed.
__________________________________ JUSTICE RAVI NATH TILHARI 08.07.2022 Note:-
L.R. Copy to be marked B/o ASH 19 HON'BLE SRI JUSTICE RAVI NATH TILHARI WRIT PETITION NO.6715 OF 2019 DATE:08.07.2022 20 ASH