Central Administrative Tribunal - Jaipur
Prabhu Singh Rawat vs M/O Health And Family Welfare on 31 May, 2024
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OA No. 243/2015 & OA No. 208/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
...
ORIGINAL APPLICATION No. 208/2015
&
ORIGINAL APPLICATION No. 243/2015
Order reserved on :07.05.2024
Date of order: ..................
CORAM:
HON'BLE MS. RANJANA SHAHI, MEMBER (J)
HON'BLE SHRI LOK RANJAN, MEMBER (A)
O.A. No. 208/2015
Prabhu Singh Rawat son of late Shri Ladu Singh Rawat,
aged about 62 years, retired from Ayurveda Centre
Research Institute, Indira Colony Bani Park, Jaipur R/o
Village Mashina Via Saradhana, District Ajmer (Rajasthan)
...Applicant
(By Adv: Dr. Saugath Roy)
Versus
1. The Union of India through Secretary, Department of
Ayush, Ministry of Health and Family Welfare, Red Cross
Bhawan, Red Cross Road, New Delhi 110001.
2. The Hon'ble Minister of Health & Family Welfare (being
in his capacity as President, Governing Body of Central
Council for Research in Ayurvedic Sciences) Nirman
Bhawan, New Delhi.
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OA No. 243/2015 & OA No. 208/2015
3. The Governing Body of Central Council for Research in
Ayurvedic Sciences (CCRAS), Ministry of Health and
Family welfare, Nirman Bhawan , New Delhi 110001.
4. The Director General, Central Council for Research in
Ayurvedic Sciences, 61-65 industrial Area, opposite D-
Block Janakpuri, New Delhi.
...Respondents.
(By Adv: Shri Gaurav Jain, Shri R.P. Singh and Shri Tek
Ram Sharma proxy for Shri Neeraj Batra)
O.A. No. 243/2015
Dr. (Mrs) S.K Dave (since deceased) represented through
legal representative Dr. K.J Dave S/o late Shri Jugat Ram
Dave age 78 years, resident of 2/196 SFS Agarwal Farm
Mansarover-Jaipur (Rajasthan).
...Applicant
(By Adv: Dr. Saugath Roy)
Versus
1. The Union of India through Secretary, Department of
Ayush , Ministry of Health and Family Welfare, Red
Cross Bhawan , Red Cross Road, New Delhi 110001.
2. The Hon'ble Minister of Health & Family Welfare
(being in his capacity as President, Governing Body
of Central Council for Research in Ayurvedic
Sciences) Nirman Bhawan, New Delhi.
3
OA No. 243/2015 & OA No. 208/2015
3. The Governing Body of Central Council for Research
in Ayurvedic Sciences (CCRAS), Ministry of Health
and Family welfare, Nirman Bhawan , New Delhi
110001.
4. The Director General, Central Council for Research in
Ayurvedic Sciences, 61-65 industrial Area, opposite
D-Block Janakpuri, New Delhi.
5. The Union Public Service Commission through its
Secretary Dholpur House, New Delhi.
...Respondents.
(By Adv: Shri Gaurav Jain, Shri D.C. Sharma, Shri R.P.
Singh and Shri Tek Ram Sharma proxy for
Shri Neeraj Batra)
ORDER
Per : Hon'ble Shri Lok Ranjan, Member (A)
At the request of learned counsels for the parties, the Original Applications vide OA No.208/2015 & OA No. 243/2015 are taken up together for disposal, as common questions of law and facts are stated to be involved in all the aforesaid cases. At the further request of the learned counsels for the parties, the arguments were done for the O.A. No.243/2015. Thus, for the sake of brevity and convenience, the facts and arguments are borrowed from O.A. No.243/2015, Dr. S.K. Dave (Applicant) Vs Union of India & Others (Respondents).
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OA No. 243/2015 & OA No. 208/2015
2. The Applicant was aggrieved by the Order dated 08.03.2013, issued by Respondent No.2 as the Disciplinary Authority, whereby she was inflicted a penalty of 5% cut in pension and against the subsequent Order dated 04.04.2014 of the Respondent No.3, the Governing Body of the Central Council for Research in Ayurvedic Sciences (CCRAS) as the Appellate Authority whereby the Appeal of the Applicant/Charged Officer (CO) had been rejected.
3. The matrix of facts relevant to the present case that emerged from the pleadings and related presentations follows briefly. The Applicant/CO was posted as Assistant Director at Central Research Institute (CRI) (Ayurveda) at Jaipur from October-1995 till she was transferred to CRI (A) New Delhi in 2000 and retired on 31.08.2003 on attaining the age of superannuation. While posted in New Delhi, she was served with a Memorandum dated 21.06.2002 proposing to hold Inquiry for major penalty against the Applicant/CO inter alia other officials, in connection with an alleged cash embezzlement and fraud to the tune of Rs.405114/- in CRI (Ayurveda), Jaipur from September-1998 to April-2000. In the preliminary enquiry, 5 OA No. 243/2015 & OA No. 208/2015 it was held that although one Shri R.H. Vashnani, UDC / Cashier was directly responsible for the irregularities leading to the said fraud, articles of charges were proposed inter alia against the Applicant/CO also. The Applicant/CO furnished her statement of defence dated 24.07.2002 pleading to be not guilty, but eventually a full-fledged Inquiry was conducted against her. The Inquiring Authority had submitted its report holding Articles of Charge No. 1,3,4 & 5 in Annexure-I as not proved and Articles of Charges No.2 & 6 of Annexure-I as partially proved. After obtaining the second stage advice of the Central Vigilance Commission (CVC) vide their O.M. dated 07.11.2006, the Disciplinary Authority imposed the punishment of 5% cut in pension upon the Applicant/CO vide the penalty order dated 23.05.2007. Aggrieved by the same, the Applicant/CO filed an Appeal dated 05.07.2007 seeking exoneration from the charges against her and release of her retiral benefits in full; which was decided against her by the Appellate Authority as conveyed vide the communication dated 12.09.2009.
4. In the first round of litigation in this regard, the Applicant/CO had challenged the said cut of 5% in her 6 OA No. 243/2015 & OA No. 208/2015 pension, by way of OA No. 387/2009 which was decided vide the Order dated 28.02.2012 of this Tribunal. The prayer of the Applicant/CO was thereby allowed and while quashing and setting aside the Order dated 23.05.2007 passed by the Disciplinary Authority as well as the Order communicated on 12.09.2009 passed by the Appellate Authority, the matter was remitted back to the Disciplinary Authority to pass order afresh strictly in accordance with the provisions of law, after providing a copy of second stage advice of CVC and the opportunity of being heard to the Applicant/CO. Thereafter, the matter had been litigated by way of Civil Writ Petition No.8903/2012 filed by the Union of India and vide the CWP No.9889/2012 filed by the Applicant/CO before the Hon'ble High Court of Rajasthan at Jaipur, both of which were dismissed on 21.08.2012, with directions to the Respondents to conclude the Inquiry as per directions of the Tribunal and pass a final order in the matter as early as possible but not later than a period of four months (from 21.08.2012). Pursuant to the same, vide Order dated 01.10.2012, the Applicant/CO was provided the copy of second stage advice of CVC dated 07.11.2006 ; and she submitted representations dated 29.10.2012 to the Respondent President of the Governing 7 OA No. 243/2015 & OA No. 208/2015 Body and to the Director General categorically pleading to be provided opportunity for hearing in person and another representation dated 06.12.2012. The Respondents had passed an Order on 15.01.2013 withdrawing the earlier impugned orders dated 23.05.2007 of the Disciplinary Authority and dated 12.02.2009 of the Appellate Authority passed against the Applicant/CO, without prejudice to the right of the Disciplinary Authority to pass a fresh Order. Yet, the Applicant/CO had not been called for any personal hearing by the Respondent, whereby the President of the Governing Body, in his capacity as the Disciplinary Authority again imposed a penalty of reduction in pension by 5% with immediate effect vide Order dated 08.03.2013. The Applicant/CO preferred a statutory appeal on 15.04.2013 before the Governing Body of the CCRAS, the Appellate Authority. The Respondent Appellate Authority, passed the Order dated 04.04.2014, again without giving a personal hearing to the Applicant/CO, and the statutory appeal preferred by her was rejected.
5. Aggrieved by the same, the Applicant/CO had filed the present O.A. before this Tribunal, seeking that the impugned penalty order dated 08.03.2014 passed by the 8 OA No. 243/2015 & OA No. 208/2015 Disciplinary Authority and the order dated 04.04.2014 passed by the Appellate Authority be quashed and set aside ; and that a direction be given to the Respondents to release to the Applicant the 5% cut in pension with interest. The Applicant/CO had challenged the impugned Orders on several grounds inter alia - that after preferring the Appeal dated 15.04.2013, the Applicant/CO vide a supplement to appeal dated 23.11.2013 had raised that the President of CCRAS Council is functus officio to hear the appeal ; that the opinion of the Department of Ayush or the UPSC had not been obtained while imposing the punishment vide Order dated 08.03.2013 ; that there was no conviction of serious crime, hence lack of supervision cannot be treated as a grave misconduct on part of the Applicant/CO ; that under clause (3) of the Rule-8 of the CCS (Pension) Rule of 1972, service of notice was mandatory, whereas no such notice was ever given to the Applicant/CO ; and further that the penalty of withholding of pension imposed upon the Applicant/CO does not fall under Rule 11 of CCS (CCA) Rule 1965 (Major Penalty) and was given after her retirement which was not permissible. 9
OA No. 243/2015 & OA No. 208/2015
7. Per contra, the respondents have denied the contentions of the Applicant/CO except for the matters of facts. They have stated that upon the first stage advice being obtained from CVC on 28.02.2002, it was agreed to initiate major penalty proceedings against five persons and the charge-sheet was processed accordingly. However, subsequently, separate simultaneous proceedings were initiated against these officials - inter alia, the Applicant/CO
- who were found guilty of supervisory lapses. The Respondents further averred that all due procedure was followed and the Inquiry was completed accordingly by deputing three officers of the CCRAS. On receipt of the Inquiry Report, the matter was referred to the Department of AYUSH, Ministry of Health and Family Welfare along with the note of the Chief Vigilance Officer (CVO) of the Council for its acceptance by the President of the Governing Body (GB) of the Council i.e. the Union Minister for Health and Family Welfare. On receipt of their instructions, the second stage advice of the CVC was obtained whereby it was opined that the punishment of a suitable cut in the pension would be appropriate against Dr. S.K. Dave (Retired), i.e. the Applicant/CO. After following all due steps of the process and after considering the material available to it, 10 OA No. 243/2015 & OA No. 208/2015 the Disciplinary Authority had decided to impose the penalty of reduction of pension by 5% upon the Applicant/CO. The Respondents also averred that as there was no possibility of convening the meeting of the GB to call the Applicant/CO for personal hearing, approval of the President of the GB, CCRAS was obtained based on which, the Appeal dated 15.04.2013 by the Applicant/CO against the punishment order was placed before the GB. Thereby after due consideration of all the facts, the defence submitted by the Applicant/CO and material available on record, the appeal filed by the Applicant/CO was dismissed ; and the punishment imposed upon her was upheld. Thus, the Respondents had submitted that the orders issued by the Hon'ble Central Administrative Tribunal and Hon'ble High Court were complied within the time allowed.
8. At this stage, we also deem it appropriate to advert to the position of the law laid down by the Hon'ble Apex Court in a catena of cases regarding judicial review and limits to interference of courts in the matters of disciplinary proceedings. Specifically, the observations of the Hon'ble Supreme Court in Civil Appeal No.s 7939-7940 of 2022 arising out of SLP A(Civil) No. 3524-25 of 2022 and Civil 11 OA No. 243/2015 & OA No. 208/2015 Appeal No.s 7941-42 of 2022 arising out of SLP (Civil) No. 11021-22 of 2022 - both in the case of Union of India & Ors, Vs. Subrata Nath that had comprehensively gone into the issues of judicial review and interference of courts in the matters of disciplinary proceedings are instructive, the most germane of which are cited as follows :
"15. It is well settled that courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have been violated or the statutory regulations have not been adhered to or there are mala fides attributable to the Disciplinary Authority, then the courts can certainly interfere.
16. In the above context, following are the observations made by a three-Judge Bench of this Court in B.C. Chaturvedi (supra) :
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with." ... ... "The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive 12 OA No. 243/2015 & OA No. 208/2015 at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence."
9. The actions of the Respondents - Disciplinary Authority and Appellate Authority - are accordingly looked at from this perspective and within the boundary conditions set out as such ; together with the directions of the Hon'ble High Court of Rajasthan at Jaipur - vide Order dated 21.08.2012 in CWP No.8903/2012 filed by the Union of India and the CWP No.9889/2012 filed by the Applicant/CO
- which in turn had directed for compliance with the directions of this Tribunal vide Order dated 28.02.2012 in the previous O.A. No.387/2009. The relevant directions thereby had been for remitting the matter to Disciplinary Authority, who - after providing opportunity of being heard to the Applicant/CO and providing copy of the second stage advice of the CVC - was to pass order afresh, strictly in accordance with the provisions of law.
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OA No. 243/2015 & OA No. 208/2015
10. In this regard, we note that pursuant to the Orders dated 21.08.2012 of the Hon'ble High Court of Rajasthan at Jaipur (supra), the Respondents vide Order dated 01.10.2012 provided the Applicant/CO with a copy of second stage advice of CVC dated 07.11.2006. Moreover, the Applicant/CO had submitted a representation on 29.10.2012 to the Respondents, viz. the President of the Governing Body and to the Director General of CCRAS thereupon, categorically requesting to provide her opportunity for hearing in person - and also made another representation dated 06.12.2012. Nonetheless, the Applicant/CO was not called for any personal hearing thereafter by the Respondents and an Order was passed on 08.03.2013, whereby the President of the Governing Body, in his capacity as the Disciplinary Authority again imposed a penalty upon her of reduction in pension by 5% with immediate effect. The Applicant/CO preferred a statutory appeal on 15.04.2013 before the Governing Body of the CCRAS, the Appellate Authority. The Respondent Appellate Authority, again without giving personal hearing to the Applicant/CO, passed the Order dated 04.04.2014, by which the rejection of statutory appeal preferred by the Applicant/CO was communicated. The Respondents had 14 OA No. 243/2015 & OA No. 208/2015 averred that as it was felt that there was no possibility of convening of the meeting of the GB to call the Applicant/CO for personal hearing, the approval of the President of the GB, CCRAS was obtained based on which, the Appeal dated 15.04.2013 by the Applicant/CO against the punishment order vide Disciplinary Authority / Council's Order dated 08.03.2013 was forwarded to the concerned 13 members of the GB of the Council on 31.03.2014. Out of 13 members of the GB, 7 members had given their consent for rejecting the said appeal on the grounds that disciplinary authority issued a reasoned and speaking order dated 08.03.2013 after taking into consideration all the facts, the findings of the Inquiry Officer, submission of Charged Officer and Second Stage advice of Central Vigilance Commission. As per Rules and Regulations of CCRAS, if 1/3rd members of the Governing Body accord their approval/consent, on any subject matter, it will be presumed that the entire Governing Body of CCRAS has approved the proposal. In this particular case, 7 members of Governing Body had turned down the Appeal of the Applicant/CO. Thereby after due consideration of all the facts, the defence submitted by the Applicant and material available on record, the appeal filed by the Applicant was dismissed ; and the punishment 15 OA No. 243/2015 & OA No. 208/2015 imposed upon her was upheld. In brief therefore, it is found that while fresh Disciplinary / Appellate orders were in fact passed by the Respondent Disciplinary Authority and the Respondent Appellate Authority respectively, the Applicant was still not given a hearing in person ; although her written representations related had been taken into account by these Respondent authorities.
11. In respect of the matter of personal hearing by the Appellate Authority to the Government servant, it is instructive to advert to the relevant OM No. 11012/20/85- Estt.(A) dated 28.10.1985 of the Department of Personnel & Training (DOP&T) of the Government of India - which inter alia mentions that Rule-27 of the CCS(CCA) Rules, 1965 does not specifically provide for the grant of a personal hearing by the appellate authority to the Government servant before deciding the appeal preferred by him against a penalty imposed on him ; and that the principle of right to personal hearing applicable to a judicial trial or proceeding even at the appellate stage is not applicable to departmental inquiries, in which a decision by the appellate authority can generally be taken on the basis of the records before it. However, a personal hearing of the 16 OA No. 243/2015 & OA No. 208/2015 appellant by the appellate authority at times will afford the former an opportunity to present his case more effectively and thereby facilitate the appellate authority in deciding the appeal quickly and in a just and equitable manner. As Rule- 27 of the CCA (CCS) Rules does not preclude the grant of personal hearing in suitable cases, it has been decided that where the appeal is against an order imposing a major penalty and the appellant makes a specific request for a personal hearing, the appellate authority may after considering all relevant circumstances of the case, allow the appellant, at its discretion, the personal hearing. Thus, we find that although mentioned to be discretional as per the related Rules and guidelines, such a hearing in person was expected to have been provided by the Appellate Authority on account of specific request of the Applicant/CO and the Order dated 28.02.2012 of this Tribunal in O.A. No.387/2009 also upheld by the Hon'ble High Court of Rajasthan at Jaipur (supra). We also note further the relevant facts updated through the M.A. No.343/2023 that
- in light of the Applicant/CO having expired on 04.09.2019 ; and her husband one Dr. K.J. Dave having also expired on 16.04.2023 during the pendency of the present O.A. - the 17 OA No. 243/2015 & OA No. 208/2015 deceased Applicant/CO would be represented by her legal heirs who would prosecute the present case.
10. We also note that while the Applicant/CO had cited other purported instances of the actions of the Respondents that were not in accordance with law, a significant one out of these pertained to the requirement for referring the Applicant/CO's case to the Union Public Service Commission (UPSC) for consultation on the appropriate punishment / penalty. This requirement flows from the Article 320(3)(c) of the Constitution of India which stipulates that the Union Public Service Commission shall be consulted on all disciplinary matters affecting a person serving under the Government of India or State Government in a civil capacity, including memorial or petitions relating to such matters. Consultation with UPSC is also required under the relevant Pension Rules, where it is proposed to withhold or withdraw the pension to a retired Government servant. While the advice received upon consultation with the UPSC so prescribed may be considered advisory, yet it affords proper assistance to the Government in assessing the guilt or otherwise of the delinquent officer as well as the suitability of the penalty to be imposed. Vide information 18 OA No. 243/2015 & OA No. 208/2015 furnished under the RTI Act, 2005 to the Applicant/CO on 13.05.2014 that is on record, it had inter alia conveyed to the effect that the Appeal dated 15.04.2013, containing all the requisite documents in regard to suggest the quantum of cut in the pension of the Applicant/CO was referred to the Joint Secretary (BP), Department of AYUSH, New Delhi, on 18.03.2014, with the request that the same be forwarded to UPSC seeking their opinion in the matter ; but however, the reply of the Department of AYUSH or UPSC had not been received till that date.
11. During arguments before us, the legal counsel for the Applicant/CO had presented that the consultation with the UPSC is pre-requisite before imposition of penalty upon a Government servant and their opinion is also to be shared with the delinquent officer prior to finalization of the quantum of penalty. For determining the relevant legal position in this regard, apart from the discussions foregoing in regard to consultations with the UPSC, it would also be apposite to advert to the Order & Judgement of the Hon'ble Supreme Court dated 16.03.2011, in Civil Appeal No.5341 of 2006 in the matter of Union of India & Ors. vs S. K. Kapoor, whereby it was held that it is a settled principle of 19 OA No. 243/2015 & OA No. 208/2015 natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same. In compliance of the judgement of Hon'ble Supreme Court in S.K. Kapoor case (supra), provisions regarding supplying to the Charged Officer a copy of the advice of UPSC, in all cases where the Commission is consulted, were incorporated by amending the CCS (CCA) Rules, 1965 vide G.S.R. No. 769(E) dated 31.10.2014. Further, vide the OM No. 11012/8/2011-Estt.(A) dated 19.11.2014, it has been provided in regard of sharing of the advice upon consultation with the UPSC that a copy of the advice be forwarded to the Government servant, who shall be required to submit, if he so desires, his written representation/submission to the Disciplinary Authority within fifteen days. The Disciplinary Authority shall consider such representation and take action as prescribed in sub- rule(4), (5) and (6) of the Rule 15 of the CCS (CCA) Rules, 1965 ; and it was also provided further that similarly, in matters relating to Appeal/ Revision/ Review, a copy of the UPSC advice, if consulted, may be supplied to the Government servant and his representation, if any, thereon 20 OA No. 243/2015 & OA No. 208/2015 may be considered by the Appellate/ Revisionary/ Reviewing Authority before passing final order. Also, the instructions of the DOP&T vide OM No. 11012/05/2015- Estt.(A-III) dated 14.07.2016 inter alia provided that cases decided before the date of the judgement of Hon'ble Supreme Court in S.K. Kapoor case (supra), i.e., 16th March, 2011 need not be reopened. In cases decided after 16th March, 2011, where a penalty was imposed after relying upon the advice of UPSC, but where a copy of such advice was not given to the Charged Officer before the decision, the penalty may be set aside and inquiry taken up from the stage of supply of copy of the advice of UPSC.
12. In the conspectus of the foregoing facts and material on record, the previous Orders of this Tribunal and the Hon'ble High Court of Rajasthan at Jaipur and as per the analysis and observations made hereinbefore, the impugned Order dated 08.03.2018 of the Disciplinary Authority (Respondent No.2) and the impugned Communication dated 04.04.2018 conveying the decision of the Appellate Authority (Respondent No.3) is found to suffer from the infirmity in that it was issued in violation of the statutory provisions and guidelines as aforesaid - and 21 OA No. 243/2015 & OA No. 208/2015 were issued without prior consultation with the UPSC and without taking the prescribed follow-up actions, inter alia sharing the advice of the UPSC obtained on consultation with the Applicant/CO to seek her representation / submission and considering the same together with all available relevant material. Hence, the conduct of the impugned Disciplinary Proceedings against the Applicant/CO meets the exceptional circumstances to be liable to be interfered with by this Tribunal, since related statutory regulations have not been adhered to.
13. Accordingly, we hold that it would serve the interest of justice in this case, if for the present the said impugned Order dated 08.03.2018 of the Disciplinary Authority (Respondent No.2) and the impugned communication dated 04.04.2018 conveying the decision of the Appellate Authority (Respondent No.3) in the Appeal filed by the Applicant/CO are quashed and set aside qua the Applicant. We therefore order accordingly. We also order that consequently the penalty of 5% cut in pension imposed upon the Applicant in the present O.A. is also set aside. 22
OA No. 243/2015 & OA No. 208/2015
14. Further, we also order that the case along with its entire record be reverted to the Disciplinary Authority (Respondent No.3) for taking up the Proceedings from the stage of requisite consultation with the UPSC ; and to take all the prescribed follow-up action in consequence thereof - inter alia to share with the Applicant the advice upon consultation with UPSC, to obtain and consider the written representation/submission and take any other action as prescribed in the relevant Rules / guidelines prior to passing his final orders. We also order that if needed eventually, similar prescribed procedure shall be followed by the Appellate Authority before passing the final orders in Appeal, if any, upon prayer by the Applicant.
15. In view of the foregoing and for the reasons stated, the present O.A. is allowed to the extent of the observations hereinabove. However, there shall be no order as to costs.
16. The O.A. No. 208/2015 is also hereby disposed of in terms of the aforesaid directions and observations.
(Lok Ranjan) (Ranjana Shahi) Member (A) Member (J) !Vv