Patna High Court
Priyabrat Narayan Yadav vs Dr. Daman Chandra Mishra And Ors on 14 November, 2022
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.613 of 2018
In
Civil Writ Jurisdiction Case No.4538 of 2015
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Priyabrat Narayan Yadav son of Late Basudeo Narayan Yadav Reader,
Department of IRPM Sabour College, District Bhagalpur.
... ... Appellant/s
Versus
1. Dr. Daman Chandra Mishra and Ors son of Late Kamla Kant Mishra
resident of Maa Kamakhya Kutee, Near Bar Gachh Chowk, Mohalla P.S. -
Barari, Town and District - Bhagalpur.
2. The T.M. Bhagalpur University, Bhagalpur through its Registrar.
3. The Vice-Chancellor, T.M. Bhagalpur University, Bhagalpur.
4. The Pro Vice Chancellor, T.M. Bhagalpur University, Bhagalpur.
5. The Registrar, T.M. Bhagalpur University, Bhagalpur.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Pranav Kumar, Advocate
Ms. Shristi Singh, Advocate
For the Respondent/s : Mr. Purushottam Kumar Jha, Advocate
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 14-11-2022
On 19.10.2022, the following order was passed:
" In the instant L.P.A.,
appellant has assailed the order
of the learned Single Judge dated
29.03.2018passed in C.W.J.C. No. 4538 of 2015. Respondent Dr. Daman Chandra Mishra (Petitioner in C.W.J.C. No. 4538 of 2015) has prayed for following reliefs:-
RELIEFS:
"i) Issuance of an order, direction or a writ in the nature of Certiorari Quashing Notification No. 48/ 2015 dated 14.03.2015, whereby and where under, the authorities concerned of the respondent T.M. Bhagalpur University, Bhagalpur has appointed the Respondent No. 4 (Reader, Department of I.R.P.M., Sabour College, Sabour) as the Head of the Post Graduate Department of I.R.P.M. in place of the petitioner and the petitioner has been repatriated to Sabour Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 2/18 College, Sabour, in a complete illegal and arbitrary manner.
(ii) Issuance of an order, direction or an appropriate declaration that the Respondent No. 5 being junior to the petitioner in the rank of Reader was rightly not made the Head of the Post Graduate Department of I.R.P.M of the respondent T.M. Bhagalpur University, Bhagalpur, vide Notification No. 175 / 2014 dated 15.11.2014, and the order of the University in hand in issuing Notification No. 48/2015 dated 14.03.2015, appointing the Respondent No. 5 as the head of Head of the Post Graduate Department of I.R.P.M of the respondent T.M. Bhagalpur University, Bhagalpur is out rightly illegal, arbitrary, malafide, malicious and unsustainable in the eye of law and on facts both and is fit to be quashed by this Hon'ble Court.
iii) To hold and declare that the Petitioner is senior to the Respondent No. 5 in the Rank of Reader, as such, the petitioner is fully entitled for continuing as Head of the Post Graduate Department of I.R.P.M of the respondent T.M. Bhagalpur University, Bhagalpur till the expiry of its term.
iv) To hold and declare that the action of the Respondent University in granting promotion to the Respondent No. 5 in the Rank of Reader under Merit Promotion Scheme" w.e.f. 19.02.1993, vide Notification No. 17/ 2013 dated 02.03.2013 (Ann-2) is wholly unsustainable in the eye of law, since at that point of time, when the Respondent No. 5 was promoted, he was not holding requisite Qualification, as has been laid down under "Revised Statute in Respect of the Qualifications of Teachers of Universities/ Colleges by approved by the Chancellor on 12.12.1983 and amended on 09.09.1988 & 15.12.1990 respectively.
(v) For grant of any other relief or reliefs to which the petitioner may be found entitled to in the facts and circumstances of this case."
During pendency of the aforesaid reliefs, respondent has filed Interlocutory Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 3/18 Application challenging the promotion of the appellant to the post of Reader dated 02.03.2013. Interlocutory Application No. 2896 of 2015 was heard along with C.W.J.C. No. 4538 of 2015 and proceeded to allow Interlocutory Application which has affected the appellant's right to have benefit of promotion to the post of Reader w.e.f. 02.03.2013.
Learned counsel for the respondent (petitioner in C.W.J.C. No. 4538 of 2015) was asked as to why there is delay in questioning the order of promotion to the post of Reader dated 02.03.2013. It is submitted that as soon as he came to know of the promotion order he has questioned the order in the writ petition. He has pointed out para 3 of the prayer. Perusal of para 3 of the writ petition (prayer in writ petition) is not crystal clear in so far as quashing or declaration that the promotion order dated 02.03.2013 is not in accordance with law. Therefore, respondent (Dr. Daman Chandra Mishra) has questioned the promotion to the post of Reader by means of Interlocutory Application. Apex Court in the case of P.S. Sadasivaswamy Appellant V. State of T.N. reported in AIR 1974 SC 2271 held that in respect of seniority/ promotion the affected person must agitate before the Court of Law within a reasonable period of six months from the date of cause of action. The same has been reiterated by the Apex Court in the case of Vijay Kumar Kaul and Ors. v. Union of India reported in (2012) 7 SCC
610. In the light of these facts and circumstances, the learned Single Judge has committed error. At this stage, learned counsel for the respondent seeks time to apprise this Court in order to overcome the delay issue.
Re-list this matter on 03.11.2022."
Today, learned counsel for the respondent no. 1- Dr. Daman Chandra Mishra filed supplementary counter Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 4/18 affidavit the same is taken on record perusal of the supplementary affidavit it is nothing but reiterating the factual aspects of the matter.
Perusal of record it is evident that both appellant and first respondent were promoted to the post of Reader on 02.03.2013 with effect from 19.02.1993 and 10.06.1993 respectively. The respondent no. 1 was promoted to the post of Head of the department on 15.11.2014 and it was canceled on 14.03.2015. He had submitted representation on 14.03.2015 thereafter he has invoked jurisdiction of this Court under Article 226 in filing CWJC No. 4538 of 2015 on 17.03.2015. During pendency of the writ application he had filed I.A. No. 2896 of 2015 dated 07.04.2015 in so far as challenging the promotion order to the post of Reader of the appellant dated 02.03.2013 by which appellant had been promoted to the post of Reader with effect from 19.02.1993 and respondent no. 1 has been assigned with effect from 10.06.1993 accordingly, appellant in the order of promotion of Reader he has been placed over and above the respondent no.1.
Learned counsel for the first respondent vehemently contended that Annexure - A-2 and A-3 date of promotion to the post of Reader in so far as appellant is concerned it has been indicated as 26.08.1996. Further pay fixation of the appellant to the post of Reader has been given effect only from 26.08.1996 even though order of promotion is with effect from 19.02.1993.
The appellant had a cause of action in so far as challenging the date of promotion assigned to the appellant that is 09.02.1993 has arisen as and when his promotion to the post of the Head of the department was canceled on 14.03.2015. Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 5/18 In order to overcome the delay issue in so far as challenging the order of promotion of the appellant to the post of Reader dated 02.03.2013, he relied on para 22 of Vijay Kumar Kaul and Ors. Vs. Union of India reported in (2012) 7 SCC 610 case reads as under:
"Person who seeks appointment must approach within a reasonable period of time for redressal."
Heard the learned counsel for the respective parties.
The Single Judge has failed to take note of delay and latches issue in so far as challenge to the order of promotion to the post of Reader dated 02.03.2013 in so far as appellant is concerned. In the case of P.S. Sadasivaswamy Appellant Vs. State of Tamil Nadu reported in AIR 1974 SC 2271, read as under:
"A person who seeks promotion and appointment must approach the appropriate forum within a period of six months. Similar view expressed in the case of Ashok Kumar vs. State of Bihar reported in (2017) 4 SSC 357."
Apex Court in the case of Union of India and Others Vs. C. Girija and Others reported in (2019) 15 SCC 633, the Apex Court has held as under:
"15. There is no dispute between the parties that in the Notification dated 14.10.1999 inviting applications for filling up of 05 posts under 30% LDCE quota, 04 vacancies Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 6/18 were shown as unreserved and 01 as reserved for SC. The applicant submitted an application for participation in the selection but she could not be included against 04 unreserved vacancies, she being a general category candidate. There were certain complaints with regard to selection under 70% quota, with regard to which certain investigations were going on, which could be finalized in 2007. Applicant for the first time submitted representation to General Manager, Southern Railways on 25.09.2007 praying for inclusion of her name in the panel dated 09.01.2001. Copy of the representation filed by the applicant has been brought on the record, which indicate that applicant has in her representation relied on certain orders issued on 20.06.2007 and 05.09.2007 with regard to revision of the panel under 70% selection quota. With regard to 30% quota to be filled through LDCE, she stated that reserving 01 post for SC was totally against all norms. Representation was replied by Railways on 27.12.2007 stating that with regard to revision of the panel under 70% promotion quota, the applicant is not a party in any way. With regard to vacancy under 30% LDCE selection, it was indicated that the same was done as per the Rules prevalent at that time. O.A. No. 466 of 2009 was filed thereafter by the applicant, which has been decided by the Tribunal. The Tribunal condoned the delay of 560 days in filing the O.A. The applicant has challenged the communication dated 27.12.2007 of the Railways which was given in reply to the representation of the applicant. The condonation of delay, thus, only meant that against the letter dated Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 7/18 27.12.2007, her O.A. was held to be within time. The Tribunal and High Court have not adverted to the delay, which accrued from the declaration of panel on 09.01.2001 and submitting her representation on 25.09.2007, i.e. after more than 06 years and 09 months.
16. This Court had occasion to consider the question of cause of action in reference to grievances pertaining to service matters. This Court in C.Jacob Vs. Director of Geology and Mining had occasion to consider the case where an employee was terminated and after decades, he filed a representation, which was decided. After decision of the representation, he filed an O.A. in the Tribunal, which was entertained and order was passed. In the above context, in paragraph No.9, following has been held:-
"9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any "decision" on rights and obligations of parties. Little do they realise the consequences of such a direction to "consider". If the representation is considered and accepted, the ex- employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to "consider". If the representation is considered and rejected, the ex- employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 8/18 representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."
17. This Court again in Union of India and Others Vs. M.K. Sarkar, on belated representation laid down following, which is extracted below: (SCC p. 66, para 15) "15. When a belated representation in regard to a "stale" or "dead"
issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches."
18. Again, this Court in State of Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 9/18 Uttaranchal Vs. Shiv Charan Singh Bhandari had occasion to consider question of delay in challenging the promotion. The Court further held that representations relating to a stale claim or dead grievance does not give rise to a fresh cause of action. In paras 19 and 23 following was laid down: (SCC pp. 184-85) "19. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time.
23. In State of T.N. v. Seshachalam, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: (SCC p. 145, para 16) "16. ... filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant." Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 10/18
19. This Court referring to an earlier judgment in P.S. Sadasivaswamy Vs. State of Tamil Nadu, noticed that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. In Paragraph No. 26 and 28, following was laid down:
(Shiv Charan Singh Bhandari case, SCC pp. 185-86) "26. Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivaswamy v. State of T.N., wherein it has been laid down that: (SCC p. 154, para 2) "2. ... A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters."
28. Remaining oblivious to the factum Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 11/18 of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the Tribunal and accepted by the High Court."
20. On the preposition as noticed above, it is clear that the claim of the applicant for inclusion of her name in the panel, which was issued on 09.01.2001 and for the first time was raked up by her, by filing representation on 25.09.2007, i.e., after more than 06 and half years. The claim of inclusion in the panel had become stale by that time and filing of representation will not give any fresh cause of action. Thus, mere fact that representation was replied by Railways on 27.12.2007, a stale claim shall not become a live claim. Both the Tribunal and the High Court did not advert to this important aspect of the matter. It is further to be noted from the material on record that after declaration of panel on 09.01.2001, there were further selection under 30% promotion by LDCE quota, in which the applicant participated. In selection held in 2005 she participated and was declared unsuccessful. With regard to her non- inclusion in panel in 2005 selection, she also filed O.A. No. 629 of 2006 before the Tribunal, which was dismissed. After participating in subsequent selections under Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 12/18 30% quota and being declared unsuccessful, by mere filing representation on 27.09.2007 with regard to selection made in 2001, the delay and laches shall not be wiped out.
21. There is one more aspect of the matter, which need to be noted. The applicant was well aware that under 30% LDCE quota, out of 05 vacancies, 04 are unreserved and 01 is reserved, which was circulated by notification dated 14.10.1999. She applied against the said bifurcated vacancies and was interviewed on 08.01.2001, panel of which was declared on 09.01.2001 and promotion was made on the same day. She having participated in the selection for promotion under 30% LDCE quota and the bifurcation of the vacancies being part of the process of selection, it was not open for her to challenge the bifurcation of vacancies into general and reserved after taking a chance to get selected. In this context, reference is made to judgment of this Court in Ashok Kumar v. State of Bihar. This Court after referring to several earlier judgments have laid down following in Paragraph Nos. 13 to 18: SCC pp. 363-64) "13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 13/18 participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar, this Court held that: (SCC p. 107, para 18) "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil and Rashmi Mishra v. M.P. Public Service Commission."
14. The same view was reiterated in Amlan Jyoti Borooah, wherein it was held to be well settled that the candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful.
15. In Manish Kumar Shahi v. State of Bihar, the same principle was reiterated in the following observations: (SCC p. 584, para
16) "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 14/18 Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K, Marripati Nagaraja v. State of A.P., Dhananjay Malik v. State of Uttaranchal, Amlan Jyoti Borooah v. State of Assam, and K.A. Nagamani v. Indian Airlines.
16. In Vijendra Kumar Verma v.
Public Service Commission, candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible.
17. In Ramesh Chandra Shah v. Anil Joshi, candidates who were competing for the post of Physiotherapist in the State of Uttarakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 15/18 challenge the advertisement or the procedure of selection. This Court held that: (SCC p. 318, para 18) "18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome."
18. In State (UT of Chandigarh) v.
Jasmine Kaur, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non- selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey, this Court held that: (SCC p. 500, para 17) "17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. Thus, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted." This principle has been reiterated in a recent judgment in Madras Institute of Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 16/18 Development Studies v. K. Sivasubramaniyan."
22. We, thus, due to the above both the reasons, are of the view that the Tribunal and the High Court ought not to have entertained the stale claim of the applicant."
Delay and latches is one of the issue which has been taken note of as issue no. 1. While dealing with the issue no. 1, Apex Court has taken note of decision rendered in the case of P.S. Sadasivaswamy Appellant Vs. State of Tamil Nadu reported in AIR 1974 SC 2271 and number of judgments. Extract of the aforesaid decision reads as under:
Apex Court in the case of Mugdal and others Vs. R.P. Singh and others reported in (1986) 4 SCC 531, it is highlighted that promotion should not be disturbed after an inordinate delay. Merits need not be examined when belated challenge is made to promotions and seniority, as that would create a sense of uncertainty and insecurity amongst the Government servants. A person feeling aggrieved must approach the Court at the earliest. A reference was made to the other decisions of the Supreme Court in the case of Union of India Vs. M.R. reported in (1972) 1 SCC 379. These were the decisions where representations were filed challenging the seniority list and promotions made. These observations were made that with reference to the principle of delay and latches.
The respondent no. 1 Dr. Daman Chandra Mishra was well aware of the promotion of appellant and his own promotion to the post of Reader and he is well aware that he has Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 17/18 been placed below the appellant and appellant has been assigned the date of promotion with effect from 19.02.1993 whereas the respondent no.1 has been assigned date of promotion as 10.06.1993, therefore, cause of action accrued to the first respondent in so far as challenge to the order of the promotion of the appellant to the post of Reader is 02.03.2013 and not 14.03.2015 as contended.
It is to be noted that ignoring the claim of appellant, first respondent was promoted to the post of Head of the department. In fact, the competent authority has failed to prepare final seniority list of Reader cadre which is the source cadre to the post of Head of the department. It is learnt that source cadre to the post of Head of the department is Professor. The competent authority/appointing authority to the post of the Head of the department was required to prepare final seniority list of Professor cadre before operating such seniority list for the purpose of filling up of the post of Head of the department, the same is not forthcoming.
Abruptly, respondent no. 1 has been treated as senior to the appellant and proceeded to promote him to the post of Head of the department. Ignoring the fact that the competent authority has failed to disturb the promotion order of the appellant dated 02.03.2013 to the post of Reader/Professor. As long as, promotion of the appellant to the post of Reader/Professor has not been withdrawn/cancelled/reviewed or competent forum in setting aside the order of promotion of the appellant. Such promotion order issued on 02.03.2013 cannot be questioned by the respondent no. 1 in the year 2015, in the guise of challenging the cancellation of Head of the department promotion awarded in favour of the respondent no. 1. Therefore, Patna High Court L.P.A No.613 of 2018 dt.14-11-2022 18/18 the contention of the first respondent that he had a cause of action on 14.03.2015 the date on which his promotion to the post of Head of the department was cancelled is not tenable. On the other hand, he had a cause of action on 02.03.2013, the date on which both first respondent and appellant were promoted to the post of Reader/Professor while assigning particular date and that apart appellant was placed over and above respondent no. 1 in the promotion order.
In para 26 of the P.S. Sadasivaswamy Appellant Vs. State of Tamil Nadu reported in AIR 1974 SC 2271 case cited (supra) is crystal clear that if an aggrieved person in so far as promotion/seniority is concerned one must approach judicial forum within a reasonable period of six months or on the same year. In the present case the first respondent has taken time of two years in challenging order of promotion of the appellant dated 02.03.2013 and that too when Head of the department promotion was cancelled. In the light of these facts and circumstances order of the learned Single Judge dated 19.10.2022 stands set aside and writ petition filed by the first respondent, stands rejected.
Accordingly, the LPA is allowed.
(P. B. Bajanthri, J) ( Purnendu Singh, J) MinuAditya/-
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