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State of Punjab Vs. Anshika Goyal and Others

By Shivendra Pratap Singh
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State of Punjab Vs. Anshika Goyal and Ors. [Civil Appeal No. 317 of 2022] [Civil Appeal No. 318 of 2022] [Civil Appeal Nos. 319-320 of 2022]

Judgment

1. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 26.07.2019 and 08.08.2019 passed by the High Court of Punjab & Haryana at Chandigarh in CWP No.17248/2019 and CWP No. 18989 of 2019, by which the High Court has allowed the said writ petitions and has directed the State to issue a fresh notification providing for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riots affected persons in all private unaided nonminority Medical/Dental institutions in the State of Punjab and further directed that the said reservation/quota shall apply to management quota seats as well and further directed that the fresh notification shall also provide for a sports quota of 3% in Government Medical/Dental Colleges, the State of Punjab has preferred the present appeals.

2. The facts leading to the present appeals in a nutshell are as under:

The State of Punjab enacted the Punjab Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of fee and making of Reservation) Act, 2006 (hereinafter referred to as the ‘2006 Act’) for the regulation of admission, fixation of fee and making of reservation in Private Health Sciences Educational Institutions in the State of Punjab.

Section 6 of the 2006 Act provides for reservation of seats and as per the said Section, all private health sciences educational institutions shall reserve seats for admission in open merit category and management category, for advancement of socially and educationally backward classes of citizens or for the Scheduled Castes or Scheduled Tribes to such extent, as may be notified by the State Government in the official gazette from time to time.

2.1 The State of Punjab framed its Sports Policy in the year 2018 which provided that 3% reservation in admissions will be provided for graded sports persons. Clause 10 of the said policy also provided that the said Sports Policy shall prevail on all the Departments and Organizations of Government of Punjab, however, if any other department wishes to have specific policy, it will be finalised in consultation with the Department of Sports. It appears that by order dated 25.07.2019, a conscious decision was taken by the Government of Punjab to provide 1% reservation for sports persons. The said order was passed taking into consideration Clause 10 of the Sporty Policy, 2018.

2.2 For the academic year 2018-19, the State Government issued notification dated 6.2.2018 for admission in Medical/Dental Colleges. Clause 16 of the said notification provided for reservation in Government Medical/Dental Colleges and Clause 17 provided for admission to private institutes.

However, it appears that though 1% seats were reserved for sports persons and the children/grand children of terrorist affected persons so far as the State quota seats in Government Institutions are concerned, similar reservation was not provided for admission to private institutes even with respect to government quota seats in the private institutes.

2.3 A bunch of writ petitions were filed before the High Court for quashing Clause 17 of notification dated 6.2.2018 to the extent of not providing the reservation for sports persons and children/grand children of terrorist affected persons in the private institutes which as such were provided for the State quota seats in government institutions.

2.4 By judgment and order dated 23.08.2018, the High Court allowed the said writ petitions partially and declared that reservation that is applicable to Government institutes shall extend to the private institutes as well. The judgment and order passed by the High Court in the case of Bani Suri and others was challenged before this Court by way of a special leave petition (civil) no.28491/2018 and this Court vide order dated 12.11.2018 dismissed the said special leave petition by specifically observing that the order passed by the High Court shall not be treated as a precedent in any other case.

2.5 Subsequently, for the academic year 2019-20, the State Government issued a notification dated 6.6.2019, which subsequently came to be modified vide corrigendum dated 11.07.2019. Clauses 15 & 16 provided for reservation in Government Medical/Dental Colleges as well as admission to private institutes respectively. Clause 15 provided for 1% reservation for sports persons; 1% reservation for children/grand children of terrorist affected persons and 1% reservation for children/grand children of Sikh riot affected persons in the State quota seats in government institutions.

Clause 16 provided for 1% reservation for sports persons, children/grand children of terrorist affected persons, children/grand children of Sikh riot affected persons and 1% for wards of defence personnel so far as the State quota seats in private institutions are concerned. However, no such reservation was provided for the management quota seats.

2.6 A bunch of writ petitions came to be filed before the High Court for the academic year 2019-20 challenging the notification for (i) not providing reservation for sports persons, children/grand children of terrorist affected persons and children/grand children of Sikh riot affected persons insofar as the management quota seats in private institutes are concerned; and (ii) for providing 1% reservation for sports persons insofar as the government Medical/Dental Colleges as well as the private institutes, instead of 3% reservation for sports persons. By the impugned judgment and order, the High Court has allowed the said writ petitions and issued the following directions:

(a) The State is directed to issue a fresh notification providing for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riot affected persons in all private unaided non-minority Medical/Dental Institutions in the State of Punjab. This reservation/quota shall apply to management quota seats as well.

(b) The notification shall also provide for a sports quota of 3% in Government Medical/Dental Colleges.

(c) While determining inter se merit of candidates possessing the same sports gradation, only the NEET score shall be considered.

(d) Implementation of the 10% quota for economically weaker sections and the calculation thereof by the State of Punjab is upheld.

2.7 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court in issuing the aforesaid directions, more particularly directing the State to issue a fresh notification providing for reservation/quota for sports persons, children/grand children of terrorist affected persons/Sikh riot affected persons in all private unaided non-minority Medical/Dental Institutions in the State and directing to provide for a sports quota of 3% (instead of 1% as fixed by the State Government) in Government Medical/Dental Colleges, the State has preferred the present appeals.

3. We have heard Ms. Meenakshi Arora, learned Senior Advocate appearing for the State of Punjab and Shri P.S. Patwalia, learned Senior Advocate appearing on behalf of the original writ petitioners.

3.1 Number of submissions have been made by Ms. Meenakshi Arora, learned Senior Advocate appearing on behalf of the State on the High Court issuing a writ of mandamus directing the State to provide for reservation/quota for sports persons, children/grand children of terrorist affected persons/Sikh riot affected persons in all private unaided nonminority Medical/Dental institutions in the State.

3.2 It is vehemently submitted that no writ of mandamus can be issued by the High Court directing the State to provide for reservation for the particular class or category and it should be left to the wisdom of the State Government. It is also the case on behalf of the State that Article 15(5) of the Constitution of India is an enabling provision and it is ultimately for the State to provide for reservation for a particular class/category and no State can be compelled and/or no writ of mandamus can be issued directing the State to provide for reservation for a particular class or category. In support of her submission, learned senior counsel has heavily relied upon the following decisions of this Court:

(i) Gulshan Prakash (Dr.) and others v. State of Haryana and others, reported in (2010) 1 SCC 477 (para 27);

(ii) Chairman and Managing Director, Central Bank of India and others v. Central Bank of India SC/ST Employees Welfare Association and others, reported in (2015) 12 SCC 308 (para 26);

(iii) Suresh Chand Gautam v. State of Uttar Pradesh and others, reported in (2016) 11 SCC 113 (para 49); and (iv) Mukesh Kumar and another v. State of Uttarakhand and others, reported in (2020) 3 SCC 1 (paras 18 & 19)

3.3 Ms. Meenakshi Arora, learned senior counsel appearing on behalf of the State of Punjab has further submitted that even a writ of mandamus issued by the High Court directing the State to provide 3% reservation/quota for sports persons is also unsustainable. It is submitted that a conscious policy decision was taken by the State Government to provide only 1% reservation/quota for sports persons.

It is submitted that it is ultimately for the State Government considering the facts situation in the State to provide the reservation/quota and what percentage of reservation/quota should be there should be left to the concerned State Government. In support of her above submission, she has also relied upon the aforesaid decisions.

4. Shri P.S. Patwalia, learned Senior Advocate appearing on behalf of the original writ petitioners has submitted that the notification under challenge before the High Court was for academic year 2019-20 and pursuant to the interim order passed by this Court, admissions have been given implementing the impugned judgment and order passed by the High Court, except providing reservation to the extent of 3% for sports persons.

4.1 It is further submitted that thereafter a fresh notification has been issued for the academic year 2021-22 in which the State has provided the reservation for sports persons, children/grand children of terrorist affected persons and Sikh riot affected persons to an extent of 1% each with respect to the private institutes also. It is therefore submitted that as such the issue in the present case has become academic. Therefore, it is prayed to dispose of the appeals by keeping the question of law open.

4.2 Now so far as the direction issued by the High Court directing the State to provide 3% reservation/quota for sports persons in Government Medical/Dental Colleges is concerned, Mr. Patwalia, learned Senior Counsel has tried to support the same by submitting that when Sports Policy, 2018 provided for 3% reservation for sports persons in admissions in all government and private higher educational institutions and universities including those of medical and technical education, located in the State of Punjab, there was no reason for the State to deviate from the same and provide for only 1% reservation/quota for sports persons. It is therefore submitted that the High Court has rightly directed to provide 3% reservation /quota for sports persons considering the Sports Policy, 2018.

5. We have heard the learned senior counsel for the respective parties at length. By the impugned judgment and order, the High Court has directed to provide for reservation/quota to sports persons, children/grand children of terrorist affected persons/Sikh riot affected persons for admissions in the private institutes and more particularly the management quota in the private institutes. The High Court has also further directed to provide for 3% reservation/quota for sports persons in all Government Medical/Dental Colleges.

6. Now so far as the directions issued by the High Court directing to provide for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riot affected persons and sports persons in all private unaided non-minority Medical/Dental institutions in the State is concerned, at the outset, it is required to be noted that the said issue has become academic, firstly on the ground that the issue before the High Court and even before this Court was/is for the academic year 2019-20.

Pursuant to the interim order passed by this Court, admissions for the academic year 2019-20 are already given as per the judgment of the High Court except providing 3% reservation/quota for sports persons and applying 1% reservation. This Court, vide order dated 27.08.2019, passed the following interim order:

“Heard Mr. K.K. Venugopal, learned Attorney General appearing on behalf of the petitioners as well as Mr. P.S. Patwalia, learned senior counsel appearing on behalf of respondent No.4. Issue fresh notice to the unrepresented/unserved respondents. After hearing the matters at some length, we deem it appropriate to have final hearing in the matter as main question arises with regard to validity of classification made as to Government seats and institutions seats for the purpose of reservation in question. Fact remains other reservations have been applied to all seats in private institutions.

However, after hearing the learned counsel for the parties and considering the decisions in “T.M.A.Pai Foundation & Ors. Versus State of Karnataka & Ors.”, (2002)8 SCC 481 and “Gulshan Prakash (DR.) & Ors. Versus State of Haryana & Ors.”, (2010) 1 SCC 477, without expressing any opinion on merits, we are of the view that there shall not be a blanket stay on the order passed by the High Court. However, the High Court has enhanced the sports quota from 1% to 3%.

That cannot be said to be appropriate as the Government has notified only 1% sports quota on horizontal business. The part of the impugned order with respect to enhancing quota from 1% to 3% shall remain stayed till the final decision by this Court. With respect to remaining part there shall be no stay. 3 Counseling to take place by 7th September, 2019. Only 1% reservation be implemented with respect to sports quota. Counseling be held as per order passed by the High Court with other aspects.”

6.1 Secondly, the State has now already provided the reservation/quota for sports persons, children/grand children of terrorist affected persons/Sikh riot affected persons even with respect to admissions in the private institutes for the academic year 2021-22.

Therefore, the first issue, whether the High Court was right in issuing directions directing the State to issue a fresh notification providing for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riot affected persons in all private unaided non-minority Medical/Dental institutions in the State of Punjab including the management quota seats has become academic and therefore we dispose of the present appeals keeping the question of law open.

As the admissions are given for the academic year 2019-20 pursuant to the interim order passed by this Court, we direct that the said admission shall not be disturbed/affected. However, it is observed that we have not entered into and/or considered any other dispute including whether the admissions are made on the basis of merit or not. If anybody has any individual grievance, in that case, it will be open for the aggrieved person to take recourse to law.

7. Now so far as the directions issued by the High Court directing the State to provide for 3% reservation/quota for sports persons, instead of 1% provided by the State is concerned, it appears from the impugned judgment and order passed by the High Court that it has issued the said direction considering the Sports Policy, 2018. It is true that as per clause 8.11(v), 3% reservation for sports persons has been provided. However, it is to be noted that clause 10 permits/allows any other department to have specific policy providing for reservation for sports persons other than 3%.

As observed hereinabove, thereafter the State Government has issued an order dated 25.07.2019 providing for 1% reservation/quota for sports persons. The said order has been issued and 1% reservation/quota for sports persons is provided after taking into consideration the Sports Policy, 2018. Therefore, a conscious policy decision has been taken by the State Government to provide for only 1% reservation/quota for sports persons.

Therefore, the question posed for the consideration of this Court is, whether the State Government’s action taking a policy decision to prescribe a particular percentage of reservation/quota for a particular category of persons, can be interfered with by issuance of a writ of mandamus, directing the State Government to provide for a particular percentage of reservation for a particular category of persons other than what has been provided in the policy decision taken by the State Government.

8. While answering the aforesaid issue, few decisions of this Court referred to hereinabove are required to be discussed.

a) In the case of Gulshan Prakash (supra), it was observed by this Court that there cannot be any mandamus by the Court to provide for a reservation for a particular community. In the case before this Court, the State of Haryana did not provide any reservation for SC/ST/backward community at the postgraduate level. A conscious decision was taken by the State of Haryana not to provide for reservation at the postgraduate level.

The same was challenged and to that this Court has observed that there cannot be any mandamus by the Court as claimed. In the aforesaid decision, it was further observed and held that Article 15(4) of the Constitution is an enabling provision and the State Government is the best Judge to grant reservation for SC/ST/backward categories at postgraduate level. Any policy and the decision of the State not to make any provision for reservation at postgraduate level suffers from no infirmity.

It was further observed that every State can take its own decision with regard to reservation depending on various factors. At this stage, it is to be noted that it was also submitted before this Court that since the Government has decided to grant reservation for SC/ST/backward class communities in admission at MBBS level, i.e., undergraduate level and therefore the State has to provide for reservation at postgraduate level also.

To that, this Court observed that since the Government had decided to grant reservation for SC/ST/backward categories in admission at MBBS level, i.e., undergraduate level, it does not mean that it is bound to grant reservation at the postgraduate level also.

b) In the case of Central Bank of India SC/ST Employees Welfare Association and others (supra), while considering the issue of providing reservation in favour of SC/ST category persons in the promotion and when Articles 15 & 16 of the Constitution of India were pressed into service, this Court observed and held that though Articles 15 & 16 empower the State to take an affirmative action in favour of the SC/ST category persons by making reservations for them in the employment of the Union or the State, they are only enabling provisions which permit the State to make provision for reservation of these category of persons.

It was further observed that insofar as making of provisions for reservation in matters of promotion to any class/classes of post is concerned, such a provision can be made in favour of SC/ST category employees if in the opinion of the State they are not adequately represented in services under the State. It is observed that therefore power lies with the State to make a provision but, at the same time, Courts cannot issue any mandamus to the State to necessarily make such a provision. In paragraph 26, it was observed and held as under:

“26. In the first instance, we make it clear that there is no dispute about the constitutional position envisaged in Articles 15 and 16, insofar as these provisions empower the State to take affirmative action in favour of SC/ST category persons by making reservations for them in the employment in the Union or the State (or for that matter, public sector/authorities which are treated as State under Article 12 of the Constitution). The laudable objective underlying these provisions is also to be kept in mind while undertaking any exercise pertaining to the issues touching upon the reservation of such SC/ST employees.

Further, such a reservation can not only be made at the entry level but is permissible in the matters of promotions as well. At the same time, it is also to be borne in mind that clauses (4) and (4-A) of Article 16 of the Constitution are only the enabling provisions which permit the State to make provision for reservation of these category of persons. Insofar as making of provisions for reservation in matters of promotion to any class or classes of post is concerned, such a provision can be made in favour of SC/ST category employees if, in the opinion of the State, they are not adequately represented in services under the State.

Thus, no doubt, power lies with the State to make a provision, but, at the same time, courts cannot issue any mandamus to the State to necessarily make such a provision. It is for the State to act, in a given situation, and to take such an affirmative action. Of course, whenever there exists such a provision for reservation in the matters of recruitment or the promotion, it would bestow an enforceable right in favour of persons belonging to SC/ST category and on failure on the part of any authority to reserve the posts, while making selections/promotions, the beneficiaries of these provisions can approach the Court to get their rights enforced.

What is to be highlighted is that existence of provision for reservation in the matter of selection or promotion, as the case may be, is the sine qua non for seeking mandamus as it is only when such a provision is made by the State, a right shall accrue in favour of SC/ST candidates and not otherwise.”

c) In the case of Suresh Chand Gautam (supra), writ petitions were preferred before this Court under Article 32 of the Constitution of India for issuance of a direction in the nature of a mandamus commanding the State/States to enforce appropriately the constitutional mandate as contained under the provisions of Article 16(4-A), 16(4-B) and 335 of the Constitution , or in the alternative, directing the respondents to constitute a committee or appoint a commission chaired either by a retired Judge of the High Court or Supreme Court in making survey and collecting necessary qualitative data of the Scheduled Castes and the Scheduled Tribes in the services of the State for granting reservation in promotion in the light of direction given by this Court in M. Nagaraj v. Union of India, (2006) 8 SCC 212.

Refusing to grant such reliefs in exercise of powers under Article 32 of the Constitution of India and after referring to the decision of this Court in the case of Census Commr. Vs. R. Krishnamurthy, (2015) 2 SCC 796, this Court has observed that no writ of mandamus of such a nature can be issued. While refusing to issue a writ of mandamus of such a nature, in paragraph 49, it was observed and held as under:

“49. Recently in Census Commr. v. R. Krishnamurthy [Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 : (2015) 1 SCC (L&S) 589] a three-Judge Bench while dealing with the correctness of the judgment of the High Court wherein the High Court had directed that the Census Department of the Government of India shall take such measures towards conducting the caste-wise census in the country at the earliest and in a time-bound manner, so as to achieve the goal of social justice in its true sense, which is the need of the hour, the court analysing the context opined thus: (SCC p. 806, para 25)

“25. Interference with the policy decision and issue of a mandamus to frame a policy in a particular manner are absolutely different. The Act has conferred power on the Central Government to issue notification regarding the manner in which the census has to be carried out and the Central Government has issued notifications, and the competent authority has issued directions. It is not within the domain of the court to legislate.

The courts do interpret the law and, in such interpretation, certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But the courts are not to plunge into policy-making by adding something to the policy by way of issuing a writ of mandamus.”

We have referred to the said authority in Census Commr. case [Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 : (2015) 1 SCC (L&S) 589] as the Court has clearly held that it neither legislates nor does it issue a mandamus to legislate. The relief in the present case, when appositely appreciated, tantamounts to a prayer for issue of a mandamus to take a step towards framing of a rule or a regulation for the purpose of reservation for the Scheduled Castes and the Scheduled Tribes in matter of promotions. In our considered opinion, a writ of mandamus of such a nature cannot be issued.”

d) In the recent decision in the case of Mukesh Kumar and another (supra), again it is reiterated by this Court that no mandamus can be issued by the Court directing the State Government to provide for reservation. It was further observed that even no writ of mandamus can be issued directing the State to collect quantifiable data to justify their action not to provide for reservation.

It was observed that even if the under-representation of Scheduled Casts and Scheduled Tribes in public services is brought to the notice of the Court, no mandamus can be issued by the Court to the State Government to provide for reservation. While holding so, in paragraph 18, it was observed and held as under:

“18. The direction that was issued to the State Government to collect quantifiable data pertaining to the adequacy or inadequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes in government services is the subject-matter of challenge in some appeals before us. In view of the law laid down by this Court, there is no doubt that the State Government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the Court directing the State Government to provide reservations.

It is abundantly clear from the judgments of this Court in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] , Ajit Singh (2) [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239] , M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] that Articles 16(4) and 16(4-A) are enabling provisions and the collection of quantifiable data showing inadequacy of representation of Scheduled Castes and Scheduled Tribes in public service is a sine qua non for providing reservations in promotions.

The data to be collected by the State Government is only to justify reservation to be made in the matter of appointment or promotion to public posts, according to Articles 16(4) and 16(4-A) of the Constitution. As such, collection of data regarding the inadequate representation of members of the Scheduled Castes and Scheduled Tribes, as noted above, is a prerequisite for providing reservations, and is not required when the State Government decided not to provide reservations.

Not being bound to provide reservations in promotions, the State is not required to justify its decision on the basis of quantifiable data, showing that there is adequate representation of members of the Scheduled Castes and Scheduled Tribes in State services. Even if the under-representation of Scheduled Castes and Scheduled Tribes in public services is brought to the notice of this Court, no mandamus can be issued by this Court to the State Government to provide reservation in light of the law laid down by this Court in C.A. Rajendran [C.A. Rajendran v. Union of India, (1968) 1 SCR 721 : AIR 1968 SC 507] and Suresh Chand Gautam [Suresh Chand Gautam v. State of U.P., (2016) 11 SCC 113 : (2016) 2 SCC (L&S) 291] .

Therefore, the direction given by the High Court that the State Government should first collect data regarding the adequacy or inadequacy of representation of Scheduled Castes and Scheduled Tribes in government services on the basis of which the State Government should take a decision whether or not to provide reservation in promotion is contrary to the law laid down by this Court and is accordingly set aside.

Yet another direction given by the High Court in its judgment dated 15-7-2019 [Vinod Kumar v. State of Uttarakhand, WP (S/B) No. 291 of 2019, decided on 15-7-2019 (Utt)] , directing that all future vacancies that are to be filled up by promotion in the posts of Assistant Engineer, should only be from the members of Scheduled Castes and Scheduled Tribes, is wholly unjustifiable and is hence set aside.”

9. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has committed a grave error in issuing a writ of mandamus and directing the State Government to provide for 3% reservation/quota for sports persons, instead of 1% as provided by the State Government. A conscious policy decision was taken by the State Government to provide for 1% reservation/quota for sports persons.

A specific order dated 25.07.2019 was also issued by the State Government. Therefore, the High Court has exceeded its jurisdiction while issuing a writ of mandamus directing the State to provide a particular percentage of reservation for sports persons, namely, in the present case, 3% reservation instead of 1% provided by the State Government, while exercising powers under Article 226 of the Constitution of India.

Therefore, the impugned common judgment and order passed by the High Court insofar as directing the State to provide for 3% reservation for sports persons and/or provide for a sports quota of 3% in the Government Medical/Dental Colleges is unsustainable and the same deserves to be quashed and set aside.

10. In view of the above and for the reasons stated above, the first direction issued by the High Court directing the State to issue a fresh notification providing for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riot affected persons in all private unaided non-minority Medical/Dental institutions in the State of Punjab is concerned, the present appeals are disposed of as the said issue has become academic for the reasons stated hereinabove, However, the question of law, whether such a direction/writ of mandamus could have been issued is kept open.

10.1 So far as the second direction issued by the High Court directing to provide for a sports quota of 3% in Government Medical/Dental Colleges in the State of Punjab is concerned, the same is hereby quashed and set aside by observing that no writ of mandamus could have been issued by the High Court.

10.2 All impleadment/intervention applications stand disposed of in terms of the aforesaid judgment and order. However, if any individual person has a grievance, he/she may take recourse to law for his/her grievance.

11. The present appeals are allowed in the aforesaid terms. However, in the facts and circumstances of the case, there shall be no order as to costs.

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