Allowed

Nirmal Kumar Guleria v. State of Hp

Himachal Pradesh HC8 Sept 2022CWPOA/4918/2019

Case brief

AI extract

What is this about?

Junior Assistants and Senior Clerks in the Himachal Pradesh police department challenged retrospective withdrawal of their designations and revised pay scales by notifications of 1998 and 2001. The High Court held they had acquired vested rights which could not be taken away retrospectively, quashed the notifications to that extent and allowed the petitions.

What did the court decide?

Quashed the 1998 and 2001 notifications to the extent they retrospectively took away vested rights; respondents directed to let petitioners retain Senior Clerk designation and protect their pay scales

Nirmal Kumar Guleria Vs State of Hp — Service and Employment | Himachal Pradesh HC (2022)

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Reportable/Unreportable

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IN THE HIGH COURT OF HIMACHAL PRADESH

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SHIMLA

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ON THE 8^th DAY OF SEPTEMBER, 2022

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BEFORE

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HON'BLE MR. JUSTICE SATYEN VAIDYA

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CIVIL WRIT PETITION (ORIGINAL APPLICATION) No.

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4777 OF 2019 ALONG WITH CIVIL WRIT PETITION (ORIGINAL APPLICATION) Nos. 4737, 4918 AND 4691

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OF 2019.

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1. CWPOA No. 4777 OF 2019.

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Between:-

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1. LEKH RAJ SON OF LATE SH. SHYAM LAL, RESIDENT OF VILLAGE GHAROON, PO BHAWANA, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH, PRESENTLY WORKING AS JR. ASSISTANT IN THE OFFICE OF 1ST IRB BANGARH, DISTRICT UNA, H.P.

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2. SMT. SANTOSH KUMARI WIFE OF SH. MUKTHIAR SINGH, RESIDENCE OF PUNEET COTTAGE SANJAULI, SHIMLA, PRESENTLY WORKING AS JR. ASSISTANT, PHQ, SHIMLA-2.

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3. SMT. RAJESHWARI CHANDEL WIFE OF SH. CHANDER MOHAN, R/O R.R. HOUSE, ELYSEAM, HILL UPPER SHANKALI,

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…2…

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SHIMLA-1, PRESENTLY WORKING AS JR. ASSISTANT, PHQ, SHIMLA, H.P.

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4. SANSAR SINGH JAMWAL SON OF SH. SOHAN SINGH JAMWAL C/O NEGI HOUSE, BCS, NEW SHIMLA, PRESENTLY WORKING AS JR. ASSISTANT IN THE OFFICE OF ADGP/APT, PHQ SHIMLA.

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5. SMT. NIRMALA DEVI WIFE OF SH. GIAN CHAND R/O AUKTA NIKETAN, BCS, NEW SHIMLA, PRESENTLY WORKING AS JR. ASSISTANT, PHQ SHIMLA-2.

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6. SUSHIL KUMAR THAKUR SON OF LATE SH. BANSI RAM THAKUR, R/O BLOCK C- 27, SET NO.12/A, SDA COMPLEX, VIKASNAGAR, SHIMLA, PRESENTLY WORKING AS JR. ASSISTANT, PHQ, H.P., SHIMLA-2.

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….PETITIONERS.

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(BY MR. DILIP SHARMA, SENIOR ADVOCATE WITH MR. TEJASVI DOGRA AND MANISH SHARMA, ADVOCATES.)

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AND

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1. STATE OF HIMACHAL PRADESH, THROUGH SECRETARY (HOME) TO THE

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GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-171002.

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2. SECRETARY FINANCE TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

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3. DIRECTOR GENERAL OF POLICE, HIMACHAL PRADESH, SHIMLA-2.

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….RESPONDENTS.

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(BY MR. R.P. SINGH AND MR. NARENDER THAKUR, DEPUTY ADVOCATE GENERALS.)

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2. CWPOA No. 4737 OF 2019.

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Between:-

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1. SURESH KUMAR S/O LATE SH. RISAL SINGH RESIDENT OF SHIV COLONY BERI-GATE, TEHSIL AND DISTT. JHAJJAR, HARYANA-124103.

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2. NAND LAL S/O SH. PREM SINGH RESIDENT OF PANWAR-NIWAS, VILLAGEBIHAR, P.O. RAJHANA, TEHSIL AND DISTRICT SHIMLA H.P. 171009.

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….PETITIONERS.

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(BY MR. GAURAV CHAUDHARY, ADVOCATE, VICE MS. SHWETA JOOLKA, ADVOCATE.)

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AND

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1. STATE OF H.P. THROUGH CHIEF SECRETARY, GOVT. OF HIMACHAL PRADESH, SHIMLA-2.

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2. SECRETARY (HOME) TO THE GOVT. OF HIMACHAL PRADESH SHIMLA-2.

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3. SECRETARY (FINANCE) TO THE GOVT. OF HIMACHAL PRADESH, SHIMLA-2.

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4. SECRETARY MINISTRY OF HOME AFFAIRS TO THE GOVT. OF INDIA, NEW DELHI.

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….RESPONDENTS.

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(BY MR. R.P. SINGH AND MR. NARENDER THAKUR, DEPUTY ADVOCATE GENERALS.)

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3. CWPOA No. 4918 OF 2019.

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Between:-

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1. SHRI NIRMAL KUMAR GULERIA S/O SH. MADHO RAM, PRESENTLY POSTED AS

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JUNIOR ASSISTANT IN THE OFFICE OF D.I.G. CENTRAL ZONE MANDI, H.P.

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2. SHRI LAJENDER SINGH PATHANIA S/O LATE SH. KESAR SINGH PATHANIA, PRESENTLY POSTED AS JUNIOR ASSISTANT IN THE OFFICE OF D.G.P. OFFICE NIGAM VIHAR, SHIMLA-2, H.P.

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….PETITIONERS.

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(BY MR. DILIP SHARMA, SENIOR ADVOCATE WITH MR. TEJASVI DOGRA AND MANISH SHARMA, ADVOCATES.)

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AND

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1. STATE OF HIMACHAL PRADESH, THROUGH ITS SECRETARY (HOME) TO THE GOVT. OF HIMACHAL PRADESH, SHIMLA-2.

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2. THE DIRECTOR GENERAL OF POLICE, H.P., SHIMLA-2.

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3. THE DEPUTY INSPECTOR GENERAL OF POLICE CENTRAL ZONE MANDI.

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….RESPONDENTS.

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(BY MR. R.P. SINGH AND MR. NARENDER THAKUR, DEPUTY ADVOCATE GENERALS.)

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4. CWPOA No. 4691 OF 2019.

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Between:-

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1. PREM CHAND S/O SHRI NAND LAL RESIDENT OF RANOT COTTAGE NEAR ST. MARY SCHOOL LOWER CHAKKAR, SHIMLA-171005; PRESENTLY WORKING AS JUNIOR ASSISTANT OFFICE OF DIRECTOR GENERAL OF POLICE HIMACHAL PRADESH, SHIMLA-171 002.

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2. YOG SINGH RANA S/O LATE SHRI CHAMAN SINGH RANA JUNIOR ASSISTANT OFFICE OF ADDL. DIRECTOR GENERAL OF POLICE STATE CID, HIMACHAL PRADESH SHIMLA.

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3. PRAKASH CHAND CHAUHAN SON OF LATE SHRI GOVIND RAM CHAUHAN, JUNIOR ASSISTANT, OFFICE OF THE DIRECTOR GENERAL OF POLICE HIMACHAL PRADESH, SHIMLA- 171 002.

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4. JEET RAM S/O LATE SHRILOHKA RAM, JUNIOR ASSISTANT OFFICE OF THE DIRECTOR GENERAL OF POLICE HIMACHAL PRADESH, SHIMLA-171002.

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5. GURDEEP CHHABRA, WIFE OF SHRI VIJAY RAJ CHHABRA, JUNIOR ASSISTANT OFFICE OF THE DIRECTOR GENERAL OF POLICE HIMACHAL PRADESH, SHIMLA-171002.

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6. BHOJ RAJ SHARMA SON OF LATE SHRI FATTA RAM, JUNIOR ASSISTANT OFFICE OF DY. INSPECTOR GENERAL OF POLICE SOUTHERN RANGE, SHIMLA.

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7. GHAN SHYAM S/O LATE SHRI RAM CHANDER, JUNIOR ASSISTANT OFFICE OF THE DIRECTOR GENERAL OF POLICE HIMACHAL PRADESH, SHIMLA-171002.

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8. MOHINDER SINGH PATIYAL SONOF SHRI PARSHOTAM DASS, JUNIOR ASSISTANT OFFICE OF THE DIRECTOR GENERAL OF POLICE HIMACHAL PRADESH, SHIMLA171002.

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9. CHANDU LAL SON OF LATE SHRI BISHAN DASS, JUNIOR ASSISTANT OFFICE OF THE INSPECTOR GENERAL OF POLICE, ARMED POLICE AND TRAINING HIMACHAL PRADESH, SHIMLA.

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10. SANJEEV KUMAR SON OF LATE SHRI HARNAM SINGH KATOCH, JUNIOR ASSISTANT OFFICE OF THE DEPUTY INSPECTOR GENERAL POLICE TRAINING

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CENTRE DAROH, DISTRICT KANGRA, (HP).

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11. GOPAL DASS SON OF SHRI SALIG RAM, JUNIOR ASSISTANT, DIRECTOR FORENSIC SCIENCE LABORATORY JUNGA, DISTRICT SHIMLA (HP).

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12. RAM PIARI WIFE OF SHRI MOHINDER THAKUR, JUNIOR ASSISTANT OFFICE OF THE DIRECTOR GENERAL OF POLICE HIMACHAL PRADESH, SHIMLA-171002.

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13. LEKH RAM SON OF LATE SHRI NIKA RAM, JUNIOR ASSISTANT, OFFICE OF COMMANDANT INDIA RESERVE Bn. JHALERA, TEHSIL AND DISTRICT UNA (HP).

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14. MAHENDER SINGH SON OF LATE SHRI KESAR SINGH, JUNIOR ASSISTANT OFFICE OF COMMANDANT INDIA RESERVE BATTALION, JHALERA, TEHSIL AND DISTRICT UNA (HP).

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15. VINOD PANWAR OF LATE SHRI BHURI SINGH PANWAR, JUNIOR ASSISTANT OFFICE OF COMMANDANT, INDIA RESERVE BATTALION, JHALERA, TEHSIL AND DISTT. UNA (HP).

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16. VEENA KUMARI WIFE OF PAWAN KUMAR, JUNIOR ASSISTANT, OFFICE OF

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DY. INSPECTOR GENERAL, NORTHERN RANGE, DHARAMSALA (HP).

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….PETITIONERS.

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(BY MR. DILIP SHARMA, SENIOR ADVOCATE WITH MR. TEJASVI DOGRA AND MANISH SHARMA, ADVOCATES.)

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AND

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1. STATE OF HIMACHAL PRADESH, THROUGH SECRETARY (HOME) GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-171002.

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2. STATE OF HIMACHAL PRADESH THROUGH SECRETARY (FINANCE) GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-171 002.

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3. DIRECTOR GENERAL OF POLICE, HIMACHAL PRADESH, SHIMLA-171 002.

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….RESPONDENTS.

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(BY MR. R.P. SINGH AND MR. NARENDER THAKUR, DEPUTY ADVOCATE GENERALS.)

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RESERVED ON : 26^th AUGUST, 2022. DECEIDED ON : 8^th SEPTEMBER, 2022.

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This petition coming on for hearing this day,

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Hon'ble Mr. Justice Satyen Vaidya, delivered the

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following: -

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J U D G E M E N T

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All these petitions have been heard together and are being disposed of by a common judgment as identical questions of facts and law are involved.

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Brief facts necessary for adjudication of these petitions are that all the petitioners are employees of police department of the State. They belong to ministerial staff and were initially engaged as Clerks. In the context of matter in issue, it will suffice to notice the posts respectively held by the petitioners as on 01.01.1996. Petitioners in CWPOA No. 4777 of 2019 and CWPOA No. 4737 of 2019 were holding posts of Clerks as on

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01.01.1996, whereas petitioners in CWPOA Nos. 4691 and 4918 of 2019 were holding posts of Senior Clerks as on the said date.

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Respondents-State had notified Recruitment and Promotion Rules for the post of Clerk (Class-III NonGazetted) in the department of police on 14.02.1997. In the cadre of Clerks, three separate categories were carved. First being in the pay-scale of 950-1800 (basic entry scale with initial start of Rs.1000/-) for Clerks, second being in the pay-scale of Rs.1200-2130 for Senior Clerks on their designation after completion of minimum five years as Clerk and third being in the pay-scale of Rs.1500-2700 on their designation as Junior Assistant after putting 10 years of service as Clerks and Senior Clerks taken together.

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Vide notification dated 20.01.1998, Himachal Pradesh Civil Services (Revised Pay) Rules, 1998 were notified. These rules were made operative from 01.01.1996. On the date of notification of these rules,

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petitioners in CWPOA No. 4777 of 2019 and CWPOA No. 4737 of 2019 had already been designated as Senior Clerks, whereas petitioners in CWPOA No. 4691 of 2019 and CWPOA No. 4918 of 2019 had been designated as Junior Assistants as per the Recruitment and Promotion Rules noted above. Petitioners were accordingly getting the pay scales admissible against their respective designation. As per the schedule annexed to Himachal Pradesh Civil Services (Revised Pay) Rules, 1998, pay scale of Senior Clerks i.e. 1200-2130 was revised to Rs.4020-6200 and the pay scale of Junior Assistants i.e. 1500-2700 was revised to 5000-8100. Since these rules were made applicable w.e.f. 01.01.1996, petitioners became entitled to the revised scales from the respective dates on which the petitioners were designated as Senior Clerks or Junior Assistants, as the case may be. Petitioners started getting the revised pay scales accordingly.

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Respondents issued a subsequent notification

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dated 01.09.1998, whereby the posts with designation of Senior Clerks was abolished w.e.f. 01.01.1996 and the revised pay scales of Junior Assistant was reduced from Rs.5000-8100 to Rs. 4400-7000. The cadre of Clerk was demarcated as Clerks and Junior Assistants in the ratio of 50:50. Respondents issued yet another notification dated 31.05.2001 whereby the provision of promotion from Clerks to Junior Assistants was done away with and instead it was provided that the posts of Junior Assistants would be filled up only by way of placement.

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On 03.11.2001, a clarification was issued to the effect that the designation and the revised equivalent of the un-revised pay scale of officials working as Senior Clerk and Junior Assistant as on 01.01.1996 shall be protected as a measure personal to them. The protection was, however, limited to the extent of excess payment made to

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Junior Assistants upto 01.09.1998 only. For Senior Clerks this protection was not made available.

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On 07.06.2005, an order was issued by respondents whereby the pay scale of 4020-6200 granted to the Senior Clerks was withdrawn. Their pay was refixed as Clerks till their placement as Junior Assistants. It is relevant to notice that the prior to the issuance of order dated 07.06.2005, petitioner in CWPOA Nos. 4777 and 4737 of 2019 had also been designated as Junior Assistants.

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In the aforesaid backdrop, the grievance of the petitioners in CWPOA No. 4777 and 4737 of 2019 is firstly against the abolition of designation of Senior Clerks vide notification dated 01.09.1998, secondly their reversion to the post of Clerks and also the reduction of their emoluments. As regards, petitioners in CWPOA Nos. 4691 and 4918 of 2019, their grievance is with regard to the

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reduction of pay scale of Junior Assistants and also the abolition of designation of Senior Clerks.

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The petitioners, thus, have approached this Court for following reliefs: -

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“CWPOA No. 4777 of 2019.

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7.1. That the retrospectivity given to impugned notification dated 1.9.1998, Annexure A-6 may be declared to be void and inoperative to the extent it takes away the vested, acquired and fundamental rights of applicants to retain the designation of Sr. Clerk allowed to them w.e.f. 1996, with all consequential benefits. Consequently, the impugned order at Annexure A-9 dated 7.6.2005 and any other order or clarification issued pursuant to A-6 may also be quashed and set aside, with all consequential benefits.

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7.2 That if during the pendency of original application, the respondent department reduces the pay of applicants

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and effects any recoveries from their salaries pursuant to impugned order at Annexure A-9, in that event the applicants may be held entitled to restoration of their pay and allowances with further direction to refund amount recovered from them, with interest at market rate on delayed payments.

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CWPOA No. 4737 of 2019.

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It is therefore, most respectfully prayed that the present writ petition may kindly be allowed and pay fixation of the petitioner No.1 vide Annexure P-5 and that of the petitioner No.2 Annexure P-7 may kindly be quashed and set aside and the respondents be directed not to give effect to Annexure P-3 retrospectively and no recoveries by ordered from the petitioners and in case the same has been done direct them to pay along with interest @9% or passed any order and direction in favour of the petitioners which this Hon'ble Court deems fit and

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proper in the interest of justice and fair play.

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CWPOA No. 4691 of 2019.

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(I) That the H.P. Civil Services (Revised Pay) (First Amendment) Rules 1998 (Annexure A-7) may be quashed and set aside.

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(ii) That the office order dated November 03, 2001, Annexure A-8 issued by the Government of Himachal Pradesh may be quashed and set aside.

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(iii) That the office order dated November 22, 2001, (Annexure A-9) may also be quashed and set aside.

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(vi) That the respondents may be directed not to affect any recoveries from the applicants.

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CWPOA No. 4918 of 2019.

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That the HP Civil Services (Revised Pay) (First Amendment) Rules 1998 (Annexure A-4) may be quashed and set aside.

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That the office order dated November 03, 2001, Annexure A-5 issued by the Government of Himachal Pradesh may be quashed and set aside.

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That the office order dated November 22, 2001, (Annexure A-6) may also be quashed and set aside.

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That the Annexure A-7 may also be quashed and respondents may kindly be directed to pay the applicants the salary without any undue delay as is being paid to similarly situated persons.

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That the respondents may be directed not to affect any recoveries from the applicants.”

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Petitioners contend that once they were

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promoted as Senior Clerks after 1.1.1996 or were already working as Senior Clerks on the said date and had started getting the enhanced pay scale, they had acquired the vested right which could not be taken away retrospectively by the respondents. As per the petitioners, the promotion means advancement or conferment of honour, dignity,

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rank or grade and the same can be to the higher pay scale or to higher post. In such view of the matter, petitioners had been promoted, be it in the designation or the emoluments. These promotions could not be taken away retrospectively. The action of respondents has been termed as tantamounting to reversion of petitioners and violative of Articles 14 and 16 of the Constitution of India. It is further alleged that the petitioners were not at fault and had not committed any fraud for getting the higher pay scales. There was no misrepresentation on the part of the petitioners, therefore, also the benefits once allowed to the petitioners could not be withdrawn.

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Per contra, while admitting the factual position, respondents have tried to justify their action on the ground that the Revised Pay Rules, 1998 were amended vide notification dated 01.09.1998 on Punjab Pattern and the cadre of Clerks was bifurcated in two i.e Clerks in the pay scale of Rs.3120-5160 and Junior Assistants in the pay

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scale of Rs.4400-7000 in the ratio of 50:50. Thus, the category of Senior Clerks in the pay scale of 4020-6200 was eliminated.

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I have heard Mr. Dilip Sharma, learned Senior Advocate, for the petitioners and Mr. R.P. Singh, learned Deputy Advocate General, for the respondents and have also gone through the entire record carefully.

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It is evident from the record that the petitioners in CWPOA No. 4777 of 2019 were designated as Senior Clerks from the dates as shown against their respective

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names in the table as under: -

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Sr. No.	Name of the petitioners	Date Designation Senior Clerks.
1.	Lekh Raj	29.04.1996.
2.	Smt. Santosh Kumari	05.09.1996
3.	Smt. Rajeshwari Devi	26.06.1996.
4.	Sh. Sansar Singh	12.09.1996
5.	Smt. Nirmala Devi	25.09.1996
6.	Sh. Susheel Kumar Thakur	03.10.1996

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In CWPOA No. 4737 of 2019, the petitioners

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were designated as Senior Clerks from the dates shown

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against their names in the table as under: -

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Sr.	Name of	Date of Designation
No.	petitioners	as Senior Clerks.
1.	Suresh Kumar	19.01.1996
2.	Nand Lal	26.07.1996.

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In CWPOA No. 4691 of 2019, the petitioners were designated as Junior Assistants from the date as shown against their names in the table as under:

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Sr. No.	Name of the petitioners	Date of Designation as Junior Assistants.
1.	Prem Chand	13.03.1996
2.	Yog Singh Rana	06.01.1996
3.	Prakash Chand Chauhan	10.03.1997
4.	Jeet Ram	22.04.1997
5.	Gurdeep Chhabra	16.10.1996
6.	Bhoj Raj Sharma	22.01.1997
7.	Ghan Shayam	05.02.1997
8.	Mohinder Singh Patiyal	28.03.1997
9.	Chandu Lal	16.10.1996

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10.	Sanjeev Kumar	19.12.1997
11.	Gopal Dass	16.10.1996
12.	Ram Piari	21.12.1997
13.	Lekh Ram	13.03.1996
14.	Mahender Singh	02.05.1997
15.	Vinod Panwar	30.10.1996
16.	Veena Kumar	10.04.1996

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In CWPOA No. 4918 of 2019, the petitioners were designated as Junior Assistants from the date as shown against their names in the table as under: -

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Sr.	Name of	the	Date of Designation
No.	petitioners		as Junior Assistants
1.	Nirmal Kumar		11.11.996
2.	Lajinder Pathania	Singh	24.12.1997

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The petitioners in CWPOA Nos. 4691 and 4918 of 2019 were already Senior Clerks as on 01.01.1996.

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There is no dispute on facts that benefits allowed to the petitioners vide Himachal Pradesh Civil Services (Revised Pay) Rules, 1998, were subsequently

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taken away by notifications dated 01.09.1998 and 31.05.2001. Resultantly, those petitioners who were promoted as Senior Clerks were reverted to the post of Clerks. Their pay scales were also reduced. Similarly, the petitioners in CWPOA No. 4918 and 4691 of 2019, who were Senior Clerks as on 01.01.1996 became clerks, their pay scales were also reduced and in addition after having been designated as Junior Assistants again their pay scales were reduced.

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The questions thus arises as to whether the petitioners had acquired any vested rights and whether the respondents could take away such rights retrospectively? 20. The principles of service jurisprudence, relevant to answer the aforesaid questions have been articulated in a recent judgment passed by the Hon'ble Supreme Court in the matter of Punjab State Cooperative Agricultural Development Bank Limited versus The Registrar Cooperative Societies and others , Civil Appeal No(s). 297-

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198 of 2022, decided on 11.01.2022. The exposition of law thus is as under: -

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“42. The question that emerges for consideration is as to what is the concept of vested or accrued rights of an employee and at the given time whether such vested or accrued rights can be divested with retrospective effect by the rule making authority.

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The concept of vested/accrued right in the service jurisprudence and particularly in respect of pension has been examined by the Constitution Bench of this Court in Chairman, Railway Board and Others(supra) as follows: -

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“ 11. On the basis of the said decision of the Full Bench of the Tribunal, other Benches of the Tribunal at Bangalore, Hyderabad, Allahabad, Jabalpur, Jaipur, Madras and Ernakulam have passed orders giving relief on the same grounds. These appeals and special leave petitions have been filed against the decision of the Full Bench and those other Benches of the Tribunal. Some of these matters were placed before a Bench of three learned Judges of

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this Court on 28-3-1995 on which date the following order was passed:

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“Two questions arise in the present case, viz., (i) what is the concept of vested or accrued rights so far as the government servant is concerned, and (ii) whether vested or accrued rights can be taken away with retrospective effect by rules made under the proviso to Article 309 or by an Act made under that article, and which of them and to what extent.We find that the Constitution Bench decisions in Roshan Lal Tandon v. Union of India (1968) 1 SCR 185; B.S. Vadera v. Union of India (1968) 3 SCR 575 and State of Gujarat v. Raman Lal Keshav Lal Soni (1983) 2 SCC 33 have been sought to be explained by two three-Judge Bench decisions in K.C. Arora v. State of Haryana (1984) 3 SCC 281 and K. Nagaraj v. State of A.P. (1985) 1 SCC 523 in addition to the two-Judge Bench decisions in P.D. Aggarwal v. State of U.P. (1987) 3 SCC 622 and K.Narayanan v. State of Karnataka 1 994 Supp (1) SCC 44. Prima facie, these explanations go counter to the ratio of the said

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Constitution Bench decisions. It is not possible for us sitting as a three-Judge Bench to resolve the said conflict. It has, therefore, become necessary to refer the matter to a larger Bench. We accordingly refer these appeals to a Bench of five learned Judges.”

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44. This Court, after taking note of the earlier view on the subject further held in Chairman, Railway Board and Others(supra)as under:-

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“20. It can, therefore, be said that a rule which operates in future so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.

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24. In many of these decisions the expressions “vested rights” or “accrued rights” have been used while striking down the impugned provisions which

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had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon (1968) 1 SCR 185, B.S. Vedera (1968) 3 SCR 575 and Raman Lal Keshav Lal Soni (1983) 2 SCC 33.

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25. In these cases we are concerned with the pension payable to the employees after their

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retirement. The respondents were no longer in service on the date of issuance of the impugned notifications. The amendments in the rules are not restricted in their application in future. The amendments apply to employees who had already retired and were no longer in service on the date the impugned notifications were issued.

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33. Apart from being violative of the rights then available under Articles 31(1) and 19(1)(f), the impugned amendments, insofar as they have been given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in Rule 2544 that were in force at the time of their retirement.”

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(emphasis supplied)

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Later, in U.P. Raghavendra Acharya and

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Others(supra) , the question which arose for

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consideration was that whether the appellants who were given the benefit of revised pay scale with effect from 1st January, 1996 could have been deprived of their retiral benefits calculated with effect therefrom for the purpose of calculation of pension. In that context, while examining the scheme of the Rules and relying on the Constitution Bench Judgment in Chairman, Railway Board and

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Others (supra), this Court observed as follows: -

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“22. The State while implementing the new scheme for payment of grant of pensionary benefits to its employees, may deny the same to a class of retired employees who were governed by a different set of rules. The extension of the benefits can also be denied to a class of employees if the same is permissible in law. The case of the appellants, however, stands absolutely on a different footing. They had been enjoying the benefit of the revised

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scales of pay. Recommendations have been made by the Central Government as also the University Grant Commission to the State of Karnataka to extend the benefits of the Pay Revision Committee in their favour. The pay in their case had been revised in 1986 whereas the pay of the employees of the State of Karnataka was revised in 1993. The benefits of the recommendations of the Pay Revision Committee w.e.f. 1-1-1996, thus, could not have been denied to the appellants.

¶191

30. In Chairman, Rly. Board v. C.R.

¶192

Rangadhamaiah (1997) 6 SCC 623, a Constitution Bench of this Court opined:

¶193

“ 33 . Apart from being violative of the rights then available under Articles 31(1) and 19(1)(f), the impugned amendments, insofar as they have been given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of

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reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in Rule 2544 that were in force at the time of their retirement.”

¶196

31. The appellants had retired from service. The State therefore could not have amended the statutory rules adversely affecting their pension with retrospective effect.”

¶197

46. Later, in Bank of Baroda and Another (supra), the question arose with respect to the employees who retired or died while in service on or after 1st April 1998 and before 31st October, 2002 to whom benefits were vested and accrued could be deprived of their retiral benefits. In this context, while taking note of the view relying on the Constitution Bench Judgment

¶198

in Chairman, Railway Board and Others (supra), this Court observed as under: -

¶199

“ 29. Thus, in our opinion, the Regulations which were in force till 2003, would apply with full force and as a matter of fact, the amendments made in it

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by addition of Explanation (c) in Regulation 2(s) did not have the effect of amending the Regulations relating to pension, as contained in Regulation 38 read with Regulations 2(d) and 35 of the Regulations of 1995. Even otherwise, if it had the effect of amending the pay and perks ‘average emoluments’, as specified in Regulation 2(d), it could not have operated retrospectively and taken away accrued rights. Otherwise also, it would have been arbitrary exercise of power. Besides, there was no binding statutory force of the so called Joint Note of the Officers’ Association, as admittedly, to Officers’ Association even the provisions of Industrial Disputes Act were not applicable and joint note had no statutory support, and it was not open to forgo the benefits available under the Regulations to those officers who have retired from 1.4.1998 till December 1999 and thereafter, and to deprive them of the benefits of the Regulations. Thus, by the Joint Note that has been relied upon, no estoppel said to have been created. There is no

¶202

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estoppel as against the enforcement of statutory provisions. The Joint Note had no force of law and

¶204

could not have been against the spirit of the statutory Regulations and the basic service conditions, as envisaged under the Regulations framed under the Act of 1970. They could not have been tinkered with in an arbitrary manner, as has been laid down by this Court in Central Inland Water Transport Corporation Limited & Anr. vs. Brojo Nath Ganguly & Anr., (1986) 3 SCC 156 & Delhi Transport Corporation vs. D.T.C. Mazdoor Congress, (1991) Supp.1 SCC 600.”

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47. The exposition of the legal principles culled out is that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.”

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Keeping in view the aforesaid enunciations, it is no more in the realm of doubt that petitioners had acquired vested rights for the reasons that whatever designation or pay scales petitioners were allowed before the issuance of impugned notification dated 01.09.1998 were under the prevalent Rules. None of the petitioners had been granted any benefit beyond the existing Rules. It is not the case where the petitioners had acquired any benefit either by committing fraud or misrepresentation of facts.

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Undoubtedly, the respondents being employers could have changed the service conditions so as to govern the future rights, but not retrospectively which has given cause of action to the petitioner to assail impugned decisions as being violative of Articles 14 and 16 of the Constitution of India.

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As held above, the petitioners were not granted benefits at any stage from outside of the provisions of Rule

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Book. They were allowed the benefits or rights that flowed from the relevant rules. Thus, the petitioners can definitely be said to have the vested and acquired rights in the benefits allowed to them under the prevalent Rules. The amendment brought by respondents in Himachal Pradesh Civil Services (Revised Pay) Rules, 1998, vide notification dated 01.09.1998 which had effect of taking away benefits already available to the petitioners under the existing Rules is contrary, discriminatory and violative of rights granted under Articles 14 and 16 of the Constitution of India.

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In view of the aforesaid exposition of law and its applicability to the facts of the case, it is clear that the vested, accrued and fundamental rights of the petitioners have been infringed and the impugned action of respondents is in clear violation of Articles 14 and 16 of the Constitution of India.

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In view of the above discussion, the petitions are allowed and the impugned notification dated 01.09.1998 and notification dated 31.05.2021 are quashed to the extent these had taken away the vested and accrued rights of the petitioners retrospectively. The respondents are directed to allow the petitioners to retain the designation of Senior Clerks from 01.01.1996 in the case of the petitioners in CWPOA Nos. 4918 and 4691 of 2019 till their designation as Junior Assistants and in case of petitioners in CWPOA Nos. 4777 and 4737 of 2019 from the respective dates on which they were conferred the designation of Senior Clerks till the acquisition of designation of Junior Assistants by them. In addition, the respondents are further directed to protect the pay scales made available to the petitioners as Senior Clerks till their designations as Junior Assistants. It is, however, specifically clarified that the relief allowed hereby to the petitioners shall be

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personal to them. Petitions are accordingly disposed of. Pending applications are also disposed of.

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(Satyen Vaidya) Judge

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8^th September, 2022. (jai)

Nirmal Kumar Guleria v. State of Hp

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Nirmal Kumar Guleria v. State of Hp

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