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2016 DIGILAW 95 (GUJ)

Naresh Bansilal Soni v. Municipal Commissioner

2016-01-13

SONIA GOKANI

body2016
JUDGMENT : Sonia Gokani, J. 1. The petitioner herein is aggrieved by the action of the respondent-Corporation discontinuing the pension which was being received by the petitioner after the demise of his father on 1st May 2002. 2. The brief facts are as follows: "The petitioner's father was serving the respondent-Corporation. The petitioner is represented by his next friend and real sister, the daughter of late Shri Bansilal Sankalchand Soni. The petitioner's father was serving in the Ahmedabad Municipal Corporation, and retired on 30th March 1989. He was getting his pension from the Corporation, and on his demise on 1st May 2002, his son, the present petitioner, being mentally retarded to the extent of 50-60% was receiving the pension. His account was also opened being Account No. 3/770, and he was paid pension from 1st May 2002 onwards, on continuous basis, till the order of 31st July 2013. Thereafter, payment of pension has been stopped on the ground that the certificate of his being alive was not produced before the respondent-Corporation. It is the say of the petitioner that he went to the office of respondent No. 2, the Deputy Chief Accountant, and met him. Vide communication dated 5th August 2014, he was informed by the Pension Branch of Finance Department that for want of production of living certificate, his pension could not be paid. Respondent No. 2 had subjectively satisfied himself that the petitioner was able to work on his own, and therefore, he was disentitled for the pension." 3. It is the say of the petitioner that he has submitted his certificate of being alive on 18th July 2014. However, the authorities since was of the opinion that he is able to work, his pension was stopped. 4. It is the say of the petitioner that he has submitted his certificate of being alive on 18th July 2014. However, the authorities since was of the opinion that he is able to work, his pension was stopped. 4. The present petition is preferred challenging the action of the respondent authority under Article 226 of the Constitution of India with the following prayers: "(13) It is therefore, in the interest of justice prayed that: (A) The writs of mandamus and/or prohibition and/or certiorari may be issued under Article 226 and/or 227 of the Constitution of India to the respondents to quash the letter dated 5.8.2014 of the respondent No. 2 and resolution C.A. No. 13 dated 23.7.2014 mentioned in the said letter as aforesaid letter dated 5.8.2014 of the respondent No. 2 and the respondent may be directed to pay the pension granted by the respondents from date 1.8.2013 till his death. (B) Pending hearing of this petition, the respondents may be directed by way of interim relief to pay the pension amount in the pension account No. 3/770. (C) Any other relief which the Hon'ble Court deems fit may be granted." 5. Affidavit-in-reply has been filed by the respondent-Corporation. According to the Corporation, the factum of his father having retired on 31st March 1989, and his having passed away on 1st May 2002, are not disputed. It is also maintained that from 1st May 2002 till 31st July 2013 as per rules, the petitioner continued to be paid pension. However, his pension was stopped when he did not submit the life certificate of his being alive (known as 'Living Certificate') before the concerned authority. A copy of disability certificate dated 18th July 2014 was produced by the petitioner before the authorities. Hearing was also given to the petitioner on 23rd July 2014, and it was observed by the competent authority that the petitioner was capable of working, and therefore, he can have his own earnings. Therefore, on 23rd July 2014, payment of pension to the petitioner was stopped. Moreover, reliance is placed on the Resolution dated 4th January 2008 whereby the person who claims to be mentally retarded shall have to be verified by the concerned authority. The petitioner, in fact, was called for a personal hearing, and thereafter, the impugned decision has been taken, and therefore, no interference is desirable. 6. Moreover, reliance is placed on the Resolution dated 4th January 2008 whereby the person who claims to be mentally retarded shall have to be verified by the concerned authority. The petitioner, in fact, was called for a personal hearing, and thereafter, the impugned decision has been taken, and therefore, no interference is desirable. 6. An additional affidavit-in-reply has also been filed by the respondent authority contending inter alia that the concerned officer needs to examine and verify the facts in relation to the pensioner for extending pensionary benefits. It was so verified by the officer of the Corporation, and only on having found that the petitioner was capable of working, payment of pension to the petitioner was stopped, that too after giving due opportunity of hearing. 7. Both the sides have been heard at length. 8. Mr. Ashok K. Padia, learned counsel for the petitioner, has urged that the respondent authority could not have been so arbitrary and callous in its approach in stopping the pension of the petitioner, who has mental retardation of 50-60%. It is further urged that the petitioner is being deprived of his pension from 1st August 2014, therefore, the Court needs to intervene on an urgent basis. He has further urged that the certificate produced is a disability certificate in form 4 issued by the Health and Family Welfare Department, Government of Gujarat, Gandhinagar, which clearly reflects that the petitioner is mentally retarded mildly at 50%. On the strength of such certificate, he was getting on a regular basis his pension, and therefore also, there is a need to quash and set aside such communication. 9. Learned Senior counsel Shri Prashant Desai appearing for the Corporation has urged that the rules provide for furnishing Living Certificate once a year, and it was required as proof of petitioner's existence, as otherwise, the concerned officer becomes personally responsible, and therefore, non-production of the certificate of his being alive has led to the authority denying him pension. He has fairly agreed that the respondent authority should have adopted a fair and transparent procedure. 10. Mr. Rashesh Rindani, learned Assistant Government Pleader, appearing for the State has pointed out from the Treasury Rules, particularly Rule 273, that the disbursing officer is required to take a special precaution that at least once a year he must receive the proof of the life certificate of the continued existence of the pensioner. 10. Mr. Rashesh Rindani, learned Assistant Government Pleader, appearing for the State has pointed out from the Treasury Rules, particularly Rule 273, that the disbursing officer is required to take a special precaution that at least once a year he must receive the proof of the life certificate of the continued existence of the pensioner. If a person is incapacitated by bodily illness or infirmity, then the officer concerned is required to visit the place of the pensioner and find out, which is a mandatory requirement. 11. This Court has appointed Mr. Gautam M. Joshi as amicus curie to render assistance to the Court on the topic of the procedures which are being followed and requires to be done in matters of present kind. He has submitted that there are various Acts, which deal with the procedures, and after formation of the board, it certifies in respect of the mentally retarded persons, and also provide for constitution of such bodies, etc. It is further urged that a person with mental retardation needs to be referred to the concerned board, which shall have to opine as to the degree and percentage of mental retardation. He has pointed out the difficulties of those persons, who need to approach the board for getting such certificates, in absence of any schedule prescribed by way of any administrative instructions or Government Resolution while constituting such board. He has pointed from a report obtained from the official website of the Government that in rural areas per lac the number of mentally retarded persons are 96 to 98, whereas in urban areas they are 86-88 in number. This figure is of the year 2002. It is published by the Directorate of Economics and Statistics, Government of Gujarat, Gandhinagar. The medical authority shall have to issue the certificate within a week but not later than one month in the form that has been prescribed under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Disabilities Act'). It is further pointed out to this Court that the other laws have not prescribed the forms for deciding the disability, and therefore, the forms which have been prescribed under the Disabilities Act shall have to be taken into account for the purpose of submitting the certificate of disability. 12. It is further pointed out to this Court that the other laws have not prescribed the forms for deciding the disability, and therefore, the forms which have been prescribed under the Disabilities Act shall have to be taken into account for the purpose of submitting the certificate of disability. 12. Having considered the submissions of both the sides and having also extensively gone through the various Government Resolutions, statutes and the administrative instructions of the State, coupled with the Gujarat Treasury Rules, 2000, this petition is being allowed for the following reasons. 13. As could be noticed from the chronology of the events, after the demise of the petitioner's father on 1.5.2002, the petitioner continued to receive pension till 31st July 2013. It was by the order dated 5.8.2014 that his pension has been stopped. Although initial ground was non-production of certificate of life of the person existing in the year 2013, later when he presented himself and that cause did not subsist for a reason which was not under contemplation, denial is made without any opportunity of hearing. 14. It would be relevant to refer to law at this stage. 15. Rule 93 of the Gujarat Civil Services (Pension) Rules, 2002 (for short 'Pension Rules') provides for payment of family pension to children with mental retardation, visual impairment, etc which reads as under: "93. Payment of Family Pension to mentally retarded, blind etc. 14. It would be relevant to refer to law at this stage. 15. Rule 93 of the Gujarat Civil Services (Pension) Rules, 2002 (for short 'Pension Rules') provides for payment of family pension to children with mental retardation, visual impairment, etc which reads as under: "93. Payment of Family Pension to mentally retarded, blind etc. children: Without prejudice to the provisions contained in rule-91, if the son or daughter of a Governments employee born before or after retirement, from the marriage which took place before or after his retirement is suffering from any disorder or disability of mind or is physically crippled or disabled or is blind so as to render him or her unable to earn a living even after attaining the age of twenty-five years the family pension shall be payable to such son or daughter for life subject to the following conditions, namely:-- (1) the handicap is of such a nature as to prevent him or her from earning his or her livelihood and the same shall be evidenced by a certificate obtained from a Medical Officer not below the rank of a Civil Surgeon or Superintendent of Civil Hospital setting out, as far as possible, the exact mental or physical condition of the child; (i) if such son or daughter is one among two or more children of the Government employee, the family pension shall be initially payable to the children in the order set out in sub-rule (9) of rule-91, until the last minor child attains the age of twenty-five and thereafter the Family Pension shall be resumed in favour of the son or daughter suffering from disorder or disability of mind or who is physically crippled or disabled or blind and shall be payable to him/her for life; (ii) if there are more than one such son or daughter suffering from disorder or disability of mind or who are physically crippled or disabled or blind the family pension shall be paid in the following order namely:-- (a) firstly to the son, and if there are more than one son, the younger of them will get the family pension only after the lifetime of the elder; (b) secondly, to the daughter, and if there are more than one daughter, the younger of them will get the Family Pension only after the life time of the elder; (iii) the family pension shall be paid to such son or daughter through the guardian as if he or she were a minor; (iv) before allowing the Family Pension for life to any such son or daughter, the sanctioning authority shall satisfy itself that the person receiving the Family Pension as guardian of such son or daughter shall produce every three years a certificate from a Medical Officer not below the rank of a Civil Surgeon/Superintendent of Civil Hospital to the effect that he or she continues to suffer from disorder or disability of mind or continue to be physically crippled or disabled. (v) Where the names of eligible children have not been mentioned in the Pension Payment Order and the child is post retiral one or post retiral manifestation of disability of the child, the pensioner, if he/she so desires can furnish the list of eligible children to the pension sanctioning authority inter-alia indicating whether any child is handicapped or not. Receipt of this may be acknowledged by the pension sanctioning authority mentioning the details of eligible children taken on record. This acknowledgment may be preserved by members of the family of the pensioner for production at the time of claim for family pension in their own turn to the pension sanctioning authority. In case of mentally retarded children or minor children who would draw pension through guardian, the responsibility of producing this acknowledgment will, however, not be a pre-condition to the processing of claims for family pension. Explanation: (a) Disability or blindness which manifests itself before the retirement or after the death of the Government employee while in service but before the son/daughter attained the age of twenty-five years shall be taken into account for the purpose of grant of Family Pension under this sub-rule. (b) A son or daughter shall become ineligible for Family Pension under this sub-rule from the date he or she gets married. (c) The Family Pension payable to such a son or daughter shall be stopped if he or she starts earning his/her livelihood. (d) In such cases it shall be the duty of the guardian to furnish a certificate to the Treasury or Bank, as the case may be, every month that (i) he or she has not started earning his/her livelihood, and (ii) he or she has not yet married. (d) In such cases it shall be the duty of the guardian to furnish a certificate to the Treasury or Bank, as the case may be, every month that (i) he or she has not started earning his/her livelihood, and (ii) he or she has not yet married. (2) they are already not in receipt of any pension or are eligible therefor, under any other rules of any other State Government or the Central Government and/or a public sector undertaking or Autonomous body under the State Government or Central Government." This provision clearly provides that if a son or daughter of a Government employee born before or after retirement, from the marriage which took place before or after his retirement, is suffering from any disorder or disability of mind or is physically crippled or disabled or blind so as to render him or her unable to earn a living even after attaining the age of twenty five years, the family pension shall be payable to such son or daughter for life, subject, of course, to certain conditions, which have been narrated. 16. This Rule makes it abundantly clear that a son or a daughter of a Government employee suffering from such disability of mind or body would be entitled to the amount of pension if this disability renders him or her unable to earn a living even after attaining the age twenty five years. The production of certificate to that effect from medical officer not below the rank of a Civil Surgeon or Superintendent of Civil Hospital setting out mental and physical condition is a must, evidencing incapability to earn livelihood. 17. The order in which such payment is to be made if more than one child is disabled is also prescribed. The Rule although appears to be gender biased, because if there are more one such son or daughter suffering from disorder, the family pension is first being given to a son, and if there are more than one sons, the younger son is not eligible to receive pension till the elder is living, and daughter receives after the son's life. If there are more daughters, the younger daughter also will be eligible for the same after the life time of the elders. 18. If there are more daughters, the younger daughter also will be eligible for the same after the life time of the elders. 18. Before the person receives family pension, the guardian of such son or daughter shall produce before the sanctioning authority every three years a certificate from a Medical Officer not below the rank of a Civil Surgeon/Superintendent of Civil Hospital to satisfy the authority the effect that he or she continues to suffer from disorder or disability of mind or body. The son or daughter shall become ineligible if he or she gets as if he or she starts earning his/her livelihood. 19. In such cases, it is also the duty of the guardian of such pensioner to furnish the certificate to the Treasury or the Bank every month that he or she has not started earning his/her livelihood and he or she has not yet married. 20. Vide Government Resolution dated 6.10.1999, administrative changes have been made to the effect that instead of separately making any application, at the time of retirement of the person concerned, the names of mentally retarded children, who are otherwise entitled for pension under Rule 93, shall be incorporated in the requisite form. 21. Government Resolution dated 22.2.1996 provides that if a person concerned is unable to earn livelihood even after attaining the age of 21 years in case of son, or 30 years in case of daughter, they need to be considered for pension if they are unmarried. The said Resolution provides as under: "After careful consideration, Govt. is pleased to decide that where the names of eligible children have not been mentioned in the PPO and the child is post retiral one or post retiral manifestation of disability of the child, the pensioner, if he/she so desires can furnish the list of eligible children to the pension sanctioning authority i.e. the Director of Pension and Provident Fund inter-alia indicating whether any child is handicapped or not. Receipt of this may be acknowledge by the pension sanctioning authority mentioning the details of eligible children taken on record. This acknowledgment may be preserved by the members of the family of the pensioner for production at the time of submission of claim for Family Pension in their own turn to the pension sanctioning authority. Receipt of this may be acknowledge by the pension sanctioning authority mentioning the details of eligible children taken on record. This acknowledgment may be preserved by the members of the family of the pensioner for production at the time of submission of claim for Family Pension in their own turn to the pension sanctioning authority. In case of mentally retarded children or minor who would draw pension through guardian, the responsibility of producing this acknowledgment will however, not be a pre-condition to the processing of claims for Family Pension." 22. It is to be noted at this stage that except the certificate of Civil Surgeon/Medical Superintendent as evidence to the mental physical disablement, no clarity is emerging from the parties as to who could be called incapable to earn livelihood. To leave that to the subjective decision of sanctioning authority in each case would surely lead to arbitrariness. In fact, certain categories of disabled persons since needed to be brought under the main stream for their participation, the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, has been brought to fulfill the objectives of getting full participation and equality to the people with disabilities. This Act provides for reservation for persons suffering from disabilities like blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation and mental illness. The Central Government and the State Government has exempted certain categories of posts considering the type and the nature of work to be carried out in the Department by a notification exempting the establishment from the provisions of this Section. This Act also provides for production of a certificate of disability to be used for getting full participation of differently abled persons and the methodology for the purpose of making an application. 23. Form-1 prescribed under the Government Resolution dated 26th October 2010 is for obtaining disability certificate by persons with disabilities, Form-2 is for obtaining disability certificate in cases of amputation or complete permanent paralysis of limbs and in cases of blindness, and form-3 is for obtaining disability certificate in case of multiple disabilities to be issued by the medical authority. It includes column 5 mental retardation' and at column 6 mental-illness'. It includes column 5 mental retardation' and at column 6 mental-illness'. Under the Resolution dated 6th January 2009 of the Government of Gujarat, the certificate must be issued by the Chairman and two members of the medical authority certifying the issuance of such disability certificate with the degree and percentage of mental disability or mental retardation. Section 2(p) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, defines 'medical authority' means any hospital or institution specified for the purposes of this Act by notification by the appropriate Government. Section 2(q) speaks of 'mental illness' meaning any mental disorder other than mental retardation. Section 2(r) speaks of 'mental retardation' means a condition of arrested or incomplete development of mind of a person which is specially characterized by sub normality of intelligence. Section 2(t) provides that 'person with disability' means a person suffering from not less than forty percent of any disability as certified by a medical authority. 24. This would mean that a person having more than 40 per cent disability would be entitled to the reservation of the post, which could be reserved for persons suffering from blindness or low vision. However, all kinds of other mental illnesses or mental retardations are not included for reservation. For the purpose of present petition, it is sufficient to note that the medical board is authorised to certify the degree of disablement, which enables concerned authorities to be sure of percentage of disability. 25. The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, in its definition clause describes persons suffering from autism, cerebral palsy, mental retardation, and 'multiple disabilities' means a combination of two or more disabilities. Section 2(g) provides for 'mental retardation' meaning a condition of arrested or incomplete development of mind of a person which is specifically characterized by sub-normality of intelligence. Section 2(h) provides for 'multiple disabilities' meaning a combination of two or more disabilities as defined in clause (i) of Section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. A 'severe disability' as provided in Section 2(o) means disability with eighty per cent, or more of one or more of multiple disabilities. Section 2(h) provides for 'multiple disabilities' meaning a combination of two or more disabilities as defined in clause (i) of Section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. A 'severe disability' as provided in Section 2(o) means disability with eighty per cent, or more of one or more of multiple disabilities. The Act provides for appointment of guardians for a person with disabilities and the duties of the guardians so also the constitution of local level committees. 26. Upon reading all these provisions so also the Government Resolutions and the administrative instructions, which have been issued from time to time, it can be said that the requirement of providing pension to the employee can be circumscribed only if the son or the daughter of the concerned person does not fall under the criteria that have been laid down. The papers of the pensioner shall contain the certificate of a medical authority if his son or daughter is mentally retarded or is challenged physically or blind or is suffering from any other disabilities. He/she disentitles himself/herself if they marry, in other words, he/she is not required to be married and shall not be earning his livelihood. The certificate of the person being alive requires to be given every month either to the Treasury or to the Bank. Every three years, the certificate of the medical authorities is required to be issued specifying the degree of disability that continues. 27. As can be seen from the factual details in the case of the present petitioner, he continued to receive pension from the year 2002 till the order impugned dated 31.7.2013 was passed by the respondent authorities. However, his pension has been stopped on two grounds, (1) his not having furnished the certificate of being alive and (2) to the officer before whom he presented himself he looked capable of earning livelihood. 27.1 It would be difficult to leave the question of evaluation of gauging the capabilities of such persons in the hands of authorities unless proper legal safeguards are contained for the denial of their right. The procedure must be based on the evaluation by the qualified experts of course subject to the periodical review and the right of appeal. 27.1 It would be difficult to leave the question of evaluation of gauging the capabilities of such persons in the hands of authorities unless proper legal safeguards are contained for the denial of their right. The procedure must be based on the evaluation by the qualified experts of course subject to the periodical review and the right of appeal. In absence of any prescribed procedure of evaluation of such persons, it shall be the qualified experts and the periodical review of such opinions of the experts which would be the guiding factors for every authority, instead of the authority deciding the cases of such persons with its limited understanding the science, prejudices and stereotypes. 28. When the petitioner has presented himself with the guardian before the concerned authority, there would arise no occasion for him to question whether he was alive or not unless he doubts the very identity of such person. That hardly is the case of the respondent authority. 29. Therefore, the only aspect that survives is of subjective decision of the sanctioning authority of the factum of the petitioner being capable of earning his livelihood and that had led him to issue him notice, and also afforded opportunity of hearing, to conclude eventually, that he was capable of earning his livelihood, and therefore, he was not held entitled to pension which he was receiving all these years. 30. In the opinion of this Court, this is an arbitrary exercise of powers on the part of the concerned officer which surely requires to be strongly disapproved. He had no authority to decide as to whether the person is capable of earning the livelihood or not by mere appearance. What all that was required of such an authority is to consider whether the certificate that he receives from the medical authority is the one prescribed under the statute or not and whether all the provisions prescribed are satisfied or not. Determining his capacity of earning the livelihood and the degree and percentage of his disability is the exclusive functions of the Medical Board. Unless otherwise evidenced by the certificate of officer not below the rank of Superintendent of Civil Hospital as Civil Surgeon, it was not for the concerned officer to subjectively take upon himself this task, and to decide as to whether the person apparently looked capable of earning his livelihood or not. Unless otherwise evidenced by the certificate of officer not below the rank of Superintendent of Civil Hospital as Civil Surgeon, it was not for the concerned officer to subjectively take upon himself this task, and to decide as to whether the person apparently looked capable of earning his livelihood or not. In case of those suffering from certain degree of mental retardation or other mental/physical disablement, in any case, the officer concerned was not authorized to decide this aspect. Therefore, his entire action, which is impugned in this petition, deserves indulgence, and the order passed on 5.8.2014 requires to be quashed and set aside. 31. At this stage, reference needs to be made of the findings and observations of the Apex Court, of course, in a different context altogether, however, they can provide guidelines for the issue in question. 32. Before the Apex Court, the question was of willingness of the victim to carry the pregnancy to its full term and bear a child, and whereas the expert body has found that she had limited understanding of the idea of pregnancy, and of the responsibility of being a mother, the Court had noted the degrees of mental retardation which are described as borderline, mild, moderate and severe and profound. The Court has also voiced its concern of certain social stereotypes and prejudices that operate to the detriment of mental retarded persons. The Court also noted that India has ratified the Convention of the Rights of Persons with Disabilities (CRPD) on October 1, 2007 and the contents of the same are binding on our legal system. "21. We must also be mindful of the varying degrees of mental retardation - namely those described as borderline, mild, moderate, severe and profound instances of the same. Persons suffering from severe and profound mental retardation usually require intensive care and supervision and a perusal of academic materials suggests that there is a strong preference for placing such persons in an institutionalised environment. However, persons with borderline, mild or moderate mental retardation are capable of living in normal social conditions even though they may need some supervision and assistance from time to time. A developmental delay in mental intelligence should not be equated with mental incapacity and as far as possible the law should respect the decisions made by persons who are found to be in a state of mild to moderate 'mental retardation." 33. A developmental delay in mental intelligence should not be equated with mental incapacity and as far as possible the law should respect the decisions made by persons who are found to be in a state of mild to moderate 'mental retardation." 33. With reference to capability of persons having condition of mental retardation to perform the parental responsibility, the Court in that context has held that the condition of mental retardation or a condition of 'mental retardation' or developmental delay is gauged on the basis of parameters such as Intelligence Quotient (I.Q.) and Mental Age (M.A.) which mostly relate to academic abilities. It is quite possible that a person with a low I.Q. or M.A. may possess the social and emotional capacities that will enable him or her to be a good parent. In the said decision, it has been said that whenever mentally retarded persons need to exercise their rights in a meaningful way or it becomes necessary to restrict or deny the same or all such rights, the procedure used for the restriction of denial of right must have proper legal safeguards against each form of abuse. The procedure as per the said decision must be based on an evaluation of the mentally retarded person by qualified experts and must be subject to periodic review and right of appeal to higher authorities. 34. In view of the discussion above, order dated 5th August 2014 is quashed. The petitioner is directed to visit the Medical Board, which shall decide the degree of mental retardation in case of the petitioner within two weeks from the date of receipt of a copy of this order. The respondent authority shall not even wait for that certificate and shall start paying the petitioner the amount of pension. 35. Resultantly the petition is allowed. Respondents are directed to pay the pension to the petitioner on regular basis from the year 2014 with interest at the rate of 9% per annum. Arrears shall be paid by way of deposit in the account of petitioner within four months from the date of receipt of a copy of order. This Court places its appreciation for the services rendered by the amicus curie, learned advocate Mr. Gautam Joshi, and the learned advocates of both sides.