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2009 DIGILAW 359 (GAU)

East Khasi Hills Autonomous District Council v. Stinghshon Rongrin

2009-05-28

H.BARUAH, UTPALENDU BIKAS SAHA

body2009
JUDGMENT Utpalendu Bikas Saha, J. 1. This writ appeal is directed against the judgment and order dated 2.6.2005 passed in W.P. (C) No. 312 (SH) of 2004 by the learned single Judge whereby and whereunder the learned single Judge while allowing the writ petition filed by the respondent-writ petitioner held that the decision of the Executive Committee to disentitle the officers who are below the rank of Class-I Grade falls within the power of the Executive Committee. But by this dis-entitlement the officers below the rank of Class-I Grade it does entitle the Executive Committee to abolish the post which was already in existence as per the service rules. The only action that can be taken is that the Executive Committee can withdrawn those orderlies posted to officers below the rank of Class I Grade and utilize their services in some other capacity in the service of the District Council, and also set aside the order of termination of the respondent-writ petitioners which was impugned in the writ petition. 2. Heard Mr. S. Sen, learned Standing Counsel of the Khasi Hills Autonomous District Counsel for the appellant Nos. 1 to 3 as well as Mr. B. Bhattacharjee for the respondent-writ petitioner. 3. Brief facts needed to be discussed for disposal of the instant writ appeal are as follows: The respondent writ-petitioner was initially engaged by one Mr. Benedict Rongrin, a Trade inspector as his personal orderly and thereafter on his recommendation on 13.9.1993 petitioner was engaged as personal orderly of the aforesaid officer in the scale of pay of Rs. 820-10-870-EB-15-975-20-1175/- per month plus usual allowances as admissible under the rules in force with a rider that the post is purely temporary and is liable to be terminated at any time without previous notice and thereafter from time to time the petitioner was provided increment and allowed the gross EB. While he was discharging his duty as personal orderly of the Trade Inspector, Mr. Benedict Rongrin, a Grade-II Officer, Executive Committee of the Autonomous District Council on 26th July, 2004 taking into note of the heavy expenses incurred in the shape of payment of monthly salaries. While he was discharging his duty as personal orderly of the Trade Inspector, Mr. Benedict Rongrin, a Grade-II Officer, Executive Committee of the Autonomous District Council on 26th July, 2004 taking into note of the heavy expenses incurred in the shape of payment of monthly salaries. etc., decided to abolish the post of personal orderlies attached to the officer below the rank of Grade-I service and consequent thereto also took a decision to terminate the service of the orderlies who were attached with the officers below the rank of Grade-I service and informed the petitioner regarding that decision by a letter vide Memo dated 30th July, 2004 annexure 5 to the Writ Petition. Being aggrieved by the aforesaid order of termination, the respondent-writ petitioner approached this Court by way of filing the aforesaid writ petition. 4. The respondent-appellant, Autonomous District Council by way of filing affidavit-in-opposition contested the case stating, inter alia, that the respondent-writ petitioner was temporarily engaged as a personal orderly attached to the officer of the council, one Trade Inspector namely Sri Benedict Rongrin. The original appointment was made by the said Trade Inspector himself and later another order was issued by the Secretary, Executive Committee, being the office order No. 1296, dated Shillong, the 13th September, 1993 on condition that the engagement is liable to be terminated at any time without any previous notice and the petitioner was not accorded any regular status in as much as the post of personal orderly is specifically mentioned in the increment for personal attachment though the yearly increment and allowances were allowed to him time to time. It is also contended that the respondent-writ petitioner was never engaged under the Autonomous District Council Service Rules, 1961 since he has been appointed purely on personal and temporary basis without any advertisement being called for nor any interview was conducted and without sanction of the authority. Due to this sort of engagement/appointment has also caused severe financial hardship to the council and for the interest of the Autonomous District Council, the Executive Committee took the decision for abolishing the post of orderly and as the Executive Committee has found that the practices of providing orderlies and porters to employees below the rank of Class-I Grade were done without any basis and against all norms of administrative procedure. The practice has instead created an artificial financial burden on the Council. The practice has instead created an artificial financial burden on the Council. The Committee took a decision for abolishing all the post of orderlies and porters attached with the officers below the rank of Class-I Grade and consequent thereto the order of termination of the respondent-writ petitioner was issued. 5. Mr. Sen, learned Counsel for the appellants Autonomous District Council attacks the judgment of the learned single Judge mainly on three grounds, firstly, the decision of the Executive Committee to abolish all the posts of orderlies and porters attached to the officers below the rank of Class-I Grade due to financial crisis is a conscious decision and not a colourable one and as such the same cannot be set aside by a writ Court, which the learned single Judge did not in the writ proceedings. Secondly, the finding of the learned single, Judge is totally perverse as the said finding is not supported by any reason. It is also contended that an order of abolition of post cannot be interfered with by a writ Court unless it is held to be vitiated by mala fides or arbitrary and in the impugned judgment though the learned single Judge used the word mala fide but did not give any reason why the order of abolition is either arbitrary or mala fide. Thirdly, the decision of the executive committee dated 26th July, 2004 wherein the abolition of the post of orderlies ad porters attached to officers below the rank of Grade-I was not a matter of challenge in the writ proceeding, but the challenge was the order of termination of the petitioner then also the learned single Judge set aside the order of abolition of post, which is totally impermissible. Finally, whether employees like the respondent-writ petitioner terminated consequent to the order of abolition would be provided for work in any other place is a matter of the policy decision of the employer like the Autonomous District Council which cannot be substituted by the writ Court as the same would substitute over all decision of the council and the writ Court cannot act as an appellate authority over the executive decision, particularly when the creation and abolition of post are within the domain of the executive authority. In support of his aforesaid contention, Mr. In support of his aforesaid contention, Mr. Sen made reliance on the decision of the Apex Court in the case of M. Ramanatha Pillai v. The State of Kerala and Anr. reported in (1973) 2 SCC 650 , particularly para 14, wherein the Apex Court held thus- 14. The first question which falls for determination is whether the Government has a right to abolish a post in the service. The power to create or abolish a post is not related to the doctrine of pleasure. It is a matter of governmental policy. Every sovereign Government has this power in the interest and necessity of internal administration. The creation or abolition of post is directed by policy decision, exigencies of circumstances and administrative necessity. The creation, the continuance and the abolition of post are all decided by the Government in the interest of administration and general public. 6. He also referred to the decision of the Apex Court in Dr. N.C. Singhal v. Union of India and Ors. reported in (1980) 3 SCC 29 , wherein the Apex Court taking note of its earlier decision in M. Ramanatha Pillai, (supra) in para 18 held thus- 18....Creation and abolition of posts is a matter of Government policy and every sovereign Government has this power in the interest and necessity of internal administration. The creation or abolition of post is directed by policy decision, exigencies of circumstances and administrative necessity. The creation, the continuance and the abolition of post are all decided by the Government in the interest of administration and general public. In the absence of requisite material the Court would be the least competent in the face of scanty material to decide whether the Government acted honestly in creating a post or refusing to create a post or its decision suffers from mala fide, legal or factual... 7. He further referred to the decision of this Court in Neelam Sarang v. State of Mizoram and Ors. reported in 2002 (1) GLT 622, wherein a leaned single Judge of this Court taking note of the decision of the Apex Court in Des Raj Sangar, (1976) 2 SCC 844 , held that abolition or retention of a post is essentially a matter for the Government to decide. reported in 2002 (1) GLT 622, wherein a leaned single Judge of this Court taking note of the decision of the Apex Court in Des Raj Sangar, (1976) 2 SCC 844 , held that abolition or retention of a post is essentially a matter for the Government to decide. If the decision to abolish the post is taken in good faith, it is not open for the Court to go behind the wisdom of the decision and substitute its own opinion. Once a post stood abolished, the person holding the post has no right to continue in the post. 8. Learned Counsel in support of his contention finally referred to the decision of the Apex Court in Notified Area Council, Pipili and Anr. v. Cahar Mohammad and Anr. reported in (2003) 11 SCC 784, particularly para 4, wherein the Apex Court observed as follows: 4. From the discussions in the judgment, it is manifest that the High Court "has to appreciated" the resolution of NAC abolishing the engagement of daily-wage workers and has also taken exception to the Executive Officer terminating the appointments of the respondents who were appointed by resolution passed by the council. From the materials available on record, it is clear that on both the counts the High Court fell into error. The position is fairly well settled that continuance or abolition of posts is within the power of the employer and any decision in that regard is not available to be interfered with by the Court unless it is held to be vitiated by mala fides or is arbitrary. From the discussions in the judgment under appeal, we do not find that the High Court took into consideration any material on record to come to the conclusion that the resolution passed by NAC, dispensing with the engagement of daily-wage workers, was vitiated on any count.... 9. Mr. Bhattacharjee fairly submits that there is no quarrel with the propositions laid down by the Apex Court in the law reports referred to (supra) by Mr. Sen. 9. Mr. Bhattacharjee fairly submits that there is no quarrel with the propositions laid down by the Apex Court in the law reports referred to (supra) by Mr. Sen. Rather he relied upon the decision of M. Ramanatha Pillai, (supra), particularly paras 22 and 23 wherein the Apex Court noted that appointment to a temporary post for a certain specified period gives the servant a right to hold the post for the entire period of his tenure, and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service and also noted that a post may be abolished in good faith and the order abolishing the post may lose is effective character if it is established to have been made arbitrary, mala fide or as a mask of some penal action within the meaning of Article 311(2). It is also contended that in the instant case, the decision of abolition of the post of orderly attached to the officers below the rank of Class I Grade was only a device to terminate the services of the employee like the petitioner and the abolition of the post would also serve from serious infirmity and would be liable to be set aside and which was rightly set aside by the learned single Judge. In support of his aforesaid contention he referred to the case, Reference of has also been made by the learned Counsel for the appellants to the decision of the Apex Court in the case of State of Haryana v. Shri Des Raj Sangar and Anr. Rajendra Sareen, (1976) 2 SCC 844 , particularly para 7, wherein the Apex Court noted thus- In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside. The termination of a post in good faith and consequent termination of the services of the incumbent of that post would not attract Article 311. 10. According to him, in the instant case the decision of abolition of posts taken by the Executive Committee, is arbitrary and mala fide and the termination of the petitioner consequent thereto is also arbitrary and mala fide. 10. According to him, in the instant case the decision of abolition of posts taken by the Executive Committee, is arbitrary and mala fide and the termination of the petitioner consequent thereto is also arbitrary and mala fide. Hence, the same was rightly quashed by the learned single Judge. 11. Mr. Bhattacharjee also referred to paragraph 6 of the affidavit-in-opposition field by the appellant-respondent wherein it is stated, inter alia, that the move to abolish and/or terminate all casual employees by the Khasi Hills District Council Employees Association, Shillong by their letter dated 10th August, 2004 appreciated the decision of the Executive Committee, stating, inter alia, that the money saved will be used for providing financial benefit to the employees like medical reimbursement, financial help to those lower ranked employees who have no more earned leave during long medical treatment, to show that the abolition of the post was not for the reason of financial crisis but for any other purpose, which cannot be supported by any reasonable person. 12. He finally contended that in the Autonomous council there are four types of services including the Class-IV services Wherein the post of orderlies are also included and all the post of orderlies were not abolished by the decision of the Executive Committee dated 26.7.2004. Only the posts of orderly attached to the officers below the rank of Class-I Grade were abolished, which itself is a discrimination and violative of Articles 14 and 16 of the Constitution and the learned single Judge very rightly held that the decision of the Executive Committee to disentitle the officers who are below the rank of Class-I Grade falls within the power of the Executive Committee, but the disentitlement of the officers below the rank of Class-I Grade itself does not entitle the Executive Committee to abolish the posts, which were already in existence as per the service rules and the only action that can be taken is that the Executive Committee could withdraw those orderlies posted to officers below the rank of Class-I Grade and utilize their services in some other capacity in some other places of the District Council. And at the same time, the service of the orderlies who were appointed by the council cannot be terminated for the simple reason that the orderlies including the petitioner are not co-terminus with the withdrawal of the orderlies from those officers. 13. And at the same time, the service of the orderlies who were appointed by the council cannot be terminated for the simple reason that the orderlies including the petitioner are not co-terminus with the withdrawal of the orderlies from those officers. 13. For proper decision of the case, it is necessary to consider the engagement letter of the respondent-writ petitioner dated 13th September, 1993 and the subsequent decision of the Executive Committee on 26th July, 2004 followed by the order of termination. Hence, the order dated 13th September, 1993 and the relevant portion of the decision of the Executive Committee dated 26th July, 2004 are reproduced herein under: OFFICE OF THE EXECUTIVE COMMITTEE, KHASI HILLS AUTONOMOUS DISTRICT COUNCIL, SHILLONG. OFFICE ORDER No. 1296 DATED SHILLONG, the 13th Sept. 1993 Shri Stingshon Rongrin is hereby temporary engaged as personal Orderly attached to the Trade Inspector, Mr. Benedict Rongrin with effect from 2.8.1993 (F.N.) in the scale of pay of Rs. 820-10-870-EB-15-975-20-1175/- RM. plus usual allowances as admissible under the rules is force. The post is purely temporary and is liable to be terminated at any time without previous notice. The expenditure is to be met from the Head of Account-Grant No. 2 "R.B.F. Department-B-Pay of Establishment Orderly"; of the current Budget 1993-94. By order etc., Sd/- Secretary, Executive Committee, Khasi Hills Autonomous District Council, Shillong Memo No. D.C-1/42/93/4(a)/541 Dated Shillong, the 13th Sept., 1993. Order of the Executive Committee, Khasi Hills Autonomous District Council, in matters connected with the termination of the services of Orderlies/Partners. ... Dated Shillong, the 26th July, 2004 The Executive Committee, Khasi Hills Autonomous District Council, is concerned with the heavy expenses incurred in the shape of payment of monthly salaries etc., and after having thoroughly examined the causes of the heavy expenditures, found out that, the appointment of casual employees attached to certain grades of Officers below the rank of Class-I Grade, is one of the reasons. The fact is that, whenever appointment(s) is/are made for such officers, whose ranks are below the rank of Class-I Grade Officers it always leads to the creation of extra posts, such as Orderlies and Porters, attached to such grade of officers. The fact is that, whenever appointment(s) is/are made for such officers, whose ranks are below the rank of Class-I Grade Officers it always leads to the creation of extra posts, such as Orderlies and Porters, attached to such grade of officers. In fact, these casual employees were not supposed to be provided to such officers but, only to the authorities of the Legislative and Executive as well as the officers of the rank of Class-I Grade of the Legislative, Executive and Judiciary. The Executive Committee has found out that the practices of providing orderlies and porters to employees below the rank of Class-I Grade, were done without any basis and against all norms of administrative procedure. The practice, has instead, created an artificially financial burden to the Council, monthly. Hence, the Executive Committee, having considered the matter from all aspects, in order to curtail the unnecessary expenditures and to streamline the administrative procedures with regards to the appointments of casual employees, has therefore, decided as follows: 5. That, the posts of Orderlies and Porters attached to Officers below the rank of Class-I Grade are abolished with immediate effect and the services of the Orderlies and Porters attached with such Officers below Class-I Grade will stand terminated with effect from 31st October, 2004 (afternoon). 6. Consequently, all orders made previously with regards to appointments of casual employees, i.e., Orderlies and Porters, stands superseded and or modified accordingly. The Secretary, Executive Committee is directed to take further necessary action. (P. Tynsong) Chief Executive Member, Khasi Hills Autonomous District Council, Shillong. 14. It appears from the decision of M. Ramanatha Pillai, (supra), that the said case was carried on to appeal before the Apex Court and the question that arose therein for decision was whether the Government has a right to abolish a post in service and whether abolition of the post is dismissal or removal within the meaning of Article 311. The Apex Court while dismissing the appeal preferred, answered those questions, inter alia, that a simple abolition of the post leading to termination of service of Government employees does not attract the provisions of Article 311 and the power to abolish any civil post is inherent in every sovereign Government and the said power is an appellate decision exercised by the Executive and is necessary for the proper functioning and internal administration of the state. The Apex Court also noted, the right to hold a post comes to an end on the abolition of the post which a Government servant holds, therefore a Government servant cannot complain of violation of Article 19(1)(f) and Article 31 of the Constitution when the post is abolished. 15. In the case of Des Raj Sangar, (supra), as referred to by Mr. Bhattacharjee, the Apex Court considering the fact of that case, observed that the post was abolished as a economy measure to meet financial stringency and that the particular post was abolished for administrative reasons, the Court cannot review such reasons. Court can only interfere with the decision of the abolition of the post when the decision has been made arbitrary, not in good faith or a plot to remove the person holding the post, but in the instant case it appears from the decision of the Executive Committee that the decision for abolition of post of orderly attached to the officers below the rank of Class-I Grade were taken as an economic measure to meet the financial stringency and that particular post was abolished for the interest of the internal administration as the provisions of orderlies to the employees below the rank of Class-I Grade were done without any basis and against all the norms of administrative procedure and which has also created an artificial financial burden on the council. Therefore, it cannot be said that the said decision was not taken in good faith. Para 7 of the aforesaid case as referred to by Mr. Bhattacharjee would also not help the case of the petitioner as in that case also the Apex Court, while allowing the appeal of the State noted that in taking a decision as to which post to abolish and which not to abolish, the Government, it seems took into account the relevant usefulness of its posts and decided to abolish seven posts of the Deputy Directors and one post of Panchayat Raj Election Officer. The said decision appears to have been taken in good faith, and the same cannot be quashed by the Court. 16. The said decision appears to have been taken in good faith, and the same cannot be quashed by the Court. 16. In the case of Mahesh Kumar Mudgil v. State of U.P. reported in (1998) 2 SCC 537, it has been held by the Apex Court that a post is automatically abolished when there is no order of extension, or when financial sanction lapses, after which the user of the post has no right to hold the post. Again, in the case of Rajendra v. State of Rajasthan reported in (1992) 2 SCC 317 , wherein the Apex Court held that the decision taken for abolition of post keeping in view the availability of funds was bona fide and the termination of the services of the person holding the post so abolished is not illegal. The aforesaid cases of Mahesh Kumar Mudgil (supra) and Rajendra (supra) were considered by the learned single Judge of this Court in Neelam Sarang v. State of Mizoram and Ors. (supra) while holding that once a post stood abolished the person holding the post has no right to continue in the post, which also supports the contention of Mr. Sen. 17. Having heard the learned Counsel for the parties and after going through the records as available before us and the law reports referred above, we are of the view that creation or abolition of any particular post is a policy matter and a policy decision of the Executive Committee, an Employer Autonomous District Council cannot be interfered with by a writ Court unless such decision was only a device to terminate the service of an employee and more so, the decision of abolition of the post is made arbitrarily/mala fide or in the garb of a mask for taking some penal action against the engagement/appointment of an employee. Now the question is, whether in the instant case the decision of the Executive Committee of the Autonomous Council dated 26th July, 2004 was taken for any ulterior purpose or only as a device to terminate the services of the petitioner as mentioned in his engagement letter dated 13th September, 1993. Now the question is, whether in the instant case the decision of the Executive Committee of the Autonomous Council dated 26th July, 2004 was taken for any ulterior purpose or only as a device to terminate the services of the petitioner as mentioned in his engagement letter dated 13th September, 1993. We are of the considered opinion that the said engagement of the respondent/writ petitioner was temporary in nature and when in the engagement letter itself there was a specific clause for termination without any previous notice it cannot be straight way said that the termination of the petitioner is the outcome of the arbitrary action of the employer Autonomous District Council when all the 18 posts of orderlies attached to the officers below the rank of Class-I Grade have been abolished by the Autonomous District Council by their decision, particularly when in their decision the Executive Committee specifically mentioned the reason for abolition of the post of orderlies attached to the employees below the rank of Class I Grade. Mere providing the benefit of increment, ipso facto does not convert a temporary post to a permanent one when it is the admitted position that the petitioner was engaged without following the procedure of public employment and more so, without creation of post of orderly for attachment with the officers below the rank of Class-I Grade. 18. We are also unable to accept the contention of Mr. Bhattacharjee, inter alia, that the decision of the Executive Committee was taken for any ulterior purpose or only as a device to terminate the service of the petitioner and such decision is a discriminatory treatment between the orderlies attached to officers below the rank of Class-I Grade and those attached with the officer of the rank of Class I Grade, as according to us, orderlies are normally attached with the officer according to their choice and also it is the admitted position that either they were initially engaged by the officer concerned or recommended by that officer with whom they were subsequently attached. Hence, the retention of the other posts of orderly attached with the other officers either in the rank of Class I Grade or any other authority higher than the rank of Class I Grade cannot be treated as discriminatory; rather the same is covered by the doctrine of reasonable classification. 19. Hence, the retention of the other posts of orderly attached with the other officers either in the rank of Class I Grade or any other authority higher than the rank of Class I Grade cannot be treated as discriminatory; rather the same is covered by the doctrine of reasonable classification. 19. According to us, the result of abolition of a particular post is the termination of the holder of that post. Learned single Judge while upholding the decision of the Executive Committee, inter alia, so far as disentitlement of getting personal orderlies by the officers below the rank of Class-I Grade suggested for utilizing the services of those orderlies who were attached with the officers below the rank of Class-I Grade in other places is nothing but a decision of the writ Court substituting the decision of the Executive Committee as if the writ Court is an appellate authority of the Executive Committee. By this time it is settled that the writ Court cannot interfere with the decision of the Executive authority if the same is within their domain unless the said decision is without authority of law, arbitrary and/or mala fide. In the instant case, though the learned single Judge held that the decision of the Executive Committee to disentitle the officers below the rank of Class-I Grade is wholly a policy decision of the council, but at the same time, it was held that the service of the orderlies who were appointed by the council cannot be terminated for the simple reason that the orderlies including the petitioner are not co-terminus with the withdrawal of the orderlies from those officers and also, inter alia, that "with regard to the decision to abolish the posts attached to those officers it is found that the decision is not proper". Learned single Judge did not assign any reason, more so, also not stated in the impugned judgment that the decision of the Executive Committee of the Autonomous District Council is either without authority of law or mala fide. A judicial decision always required to be supported by sufficient reasons, as reasons is the heartbeat of every conclusion and without the same it becomes lifeless. See Raj Kishore Jha v. State of Bihar, 2003 (11) SCC 519 . In M/s. Goyal Enterprise v. State of Jharkhand and Anr. reported in 2008 AIR SCW 1609, His Lordship Dr. A judicial decision always required to be supported by sufficient reasons, as reasons is the heartbeat of every conclusion and without the same it becomes lifeless. See Raj Kishore Jha v. State of Bihar, 2003 (11) SCC 519 . In M/s. Goyal Enterprise v. State of Jharkhand and Anr. reported in 2008 AIR SCW 1609, His Lordship Dr. Arijit Pasayat, J., the then on behalf of the Bench, stated right to reason is an indispensable part of a sound judicial system; reason atleast sufficient to indicate an application of mind to the matter before the Court. Another rationale is that the attached party can know why the decision has gone against him. One of the statutory requirements of natural justice is spelling out reasons for the order made; in other words, a speaking out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. As we have already stated earlier that even when there was no challenged regarding the decision of the Executive Committee before the writ Court, the learned single Judge quashed the said decision partly meaning thereby in passing the impugned judgment and order, the learned single Judge also did not apply his mind properly. Therefore, we are unable to suibe the opinion expressed by the learned single Judge in the impugned judgment regarding the decision of the Executive Committee of the Autonomous Council as well as the contention of Mr. Bhattacharee, as according to us, the contention raised by Mr. Sen, learned Counsel for the appellants has some force. 20. As we have already observed that abolition of a particular post resulted to termination of the holder of the post and in the instant case, the order of the termination was issued in view of the decision of abolition of the posts of orderly attached to the officers below the rank of Class-I Grade and also as per the terms and conditions mentioned in the engagement letter of the respondent/writ-petitioner. We are of the further opinion that when the decision of the Executive Committee of the Autonomous District Council dated 26.7.2004 was not under challenge by which the decision for abolition of posts attached to officers below the rank of Class I Grade was taken, the learned single Judge ought not to have interfered with such a decision as the said policy decision was not a subject matter of the writ petition. The learned single Judge should have given his decision only on the memo dated 30.7.2004 whereby and whereunder the respondent/writ-petitioner was the decision of the Executive Committee that his service as orderly stood terminated w.e.f. 30.10.2004. 21. In view of the decision of the Apex Court as stated supra and the discussion made by us as above, the impugned judgment and order of the learned single Judge calls for interference and accordingly, we interfere with the same. Consequently, the impugned judgment and order stands set aside. 22. In the result the writ appeal is allowed. No order as to costs. Appeal allowed