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Petitioner: Agha Fahad Ahmed and others VS Respondent: Chief Secretary, Government of Sindh JUDGMENT
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Kausar Sultana Hussain Title:Agha Fahad Ahmed and others vs Chief Secretary, Government of Sindh
JUDGMENT
Reported As: PLJ 2023 Karachi 146 Result: Petitions allowed Judgment JUDGMENT Aqeel Ahmed Abbasi, J.--Above Constitutional Petitions have been filed against identical order(s) dated 22.11.2021 passed by the Chief Secretary, Government of Sindh (Appellate Authority), whereby, pursuant to order dated 06.12.2017 passed in Civil Petitions No. 3440/2017 (and others), while setting aside the judgment passed by the Divisional Bench of this Court in Constitution Petition Nos. 5577/2016 (alongwith other petitions) [Re: Agha Fahad Ahmed Khan v. Province of Sindh & others], such writ petitions of the petitioners were directed to be treated as appeals before the Departmental Authority and sent them for being decided in accordance with law after hearing the appellant(s), the appeals filed by the appellants/petitioners-against identical order(s) dated 10.10.2016 passed by the Secretary, Sindh Local Government Board, Local Government Department, Government of Sindh, whereby, officers appointed in the years 2012 and 2013 and afterward working against the post(s) of BPS-16/SCUG (Admin Branch), including petitioners were relieved from their services, have been rejected. Petitioners being aggrieved by such impugned order passed by the Chief Secretary have assailed the same through instant Constitutional Petitions for being perverse, illegal and unconstitutional. 2. The above petitions were taken up jointly for hearing, which are hereby disposed of through a common judgment, as the facts and legal issue involved therein are similar, whereas, the impugned order(s) are also identical, containing same reasons of relieving/ termination of services of the petitioners, therefore, in order to avoid repetition, we would refer to the relevant facts and the documents produced by the petitioners and the respondents in CP No. D-7401/2021 in the case of Agha Fahad Ahmed v. Chief Secretary and others, which reads as follows:--
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I. That by way of essential background, most respectfully it is submitted that Respondent No. 2 vide publication dated 24.02.2012 and 26.02.2012 published in Daily `Kawish' invited applications for various posts including but not limited to the post of Chief Municipal Officer/Chief Officer. The factum of advertising the post has categorically been admitted by the respondents at all forums. II. That the petitioner being eligible, applied for the post of Chief Municipal/Chief Officer. It is worth mentioning here that the petitioner successfully qualified all the requisite test and interview. Consequently, vide appointment letter dated 30.11.2012, the petitioner was appointed as Chief Municipal Officer. III. That the petitioner accordingly accepted the offer and also submitted the documents as required by the Respondent No. 2 vide appointment order dated 30.11.2012. IV. Although, the petitioner submitted his acceptance on 10.01.2013, yet the Respondent No. 2 took a collusive time in issuing the formal appointment order, which order upon repeated persuasion of the petitioner was issued on 05.08.2013. After being appointed, the petitioner got his first posting with the Deputy Commissioner/Administrator DMC South Karachi. The petitioner on 16.08.2013 submitted his joining report and vide order dated 17.08.2013 the petitioner was allowed to join the duties. V. Thereafter , the petitioner was posted at various places, although it is regretted to point out that the petitioner was not allowed to complete his formal tenure of posting, which fact is evident form the fact that within a short span of 20 months, the petitioner was posted as Assistant Director (Taxation), Director (Parks), Town Officer and Municipal Commissioner. VI. That the petitioner was performing his duties to the utmost satisfaction of his superiors. However, vide letter dated 10.10.2016, the Respondent No. 4 relieved the petitioner, from his duties. The real meaning, import and impact of the letter dated 10.10.2016 was termination, however, in order to hoodwink upon the petitioner and other employees, the Respondent No. 4 camouflage it as a relieving order. The purported reason for issuing of patently bogus letter dated 10.10.2016 was disclosed as that the petitioner and other employees were not" appointed by the Respondent No. 4. VII. That being aggrieved and dissatisfied with the letter dated 104.2016 the petitioner and his other colleagues challenged the same by preferring C.P. No. D-5577/2016 and other petitions. All the petitions were clubbed together and were finally heard and decided vide judgment dated 27.09.2017. The learned Divisional Bench of this Court dismissed all the petitions and upheld the order dated 10.10.2016. VIII. That the petitioner amongst other challenged the same before the Hon'ble Supreme Court of Pakistan in CPLA No. 3440/2017, after observing all codal formalities the Hon'ble Apex Court vide order dated 06.12.2017, allowed petitions and set aside the order dated 27.09.2017. However, the Hon'ble Apex Court ordered that the petitions filed by the petitioners be treated as an appeal and the same would be decided after affording opportunity of hearing to the petitioners. IX. In order to sort out pro and contra of the documents, a four members committee was constituted, who in response to the letters dated 08.01.2020 and 08.06.2020 issued by the Respondent No. 2 submitted its report. The committee audited the entire process. The inquiry committee gave its categorical findings with regard to the contentions that were raised especially before this Hon'ble Court. It is pertinent to mention here that after considering the entire material, the committee recommended that the petitioner be reinstated in service. X. In this backdrop, the petitioner was directed by the Respondent No. 1 to appear in person for personal hearing. It is regretted to point out that the Respondent No. 1 failed to offer any meaningful hearing to the petitioner as also the Respondent No. 1 categorically failed to consider the inquiry report and without applying judicious mind, dismissed the appeals vide order dated 22.11.2021, which is illegal, unlawful, unconstitutional, mala fide and result of perversity of approach, hence the same is liable to be set aside.
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3. Before filing above petitions, the petitioners had filed Constitutional Petition No. D-5577/2016 alongwith other connected petitions, whereby, their relieving/termination from services vide order(s) dated 10.10.2016 was challenged before a Divisional Bench of this Court, which petitions were, however, dismissed vide order dated 27.09.2017 in the following terms: "14. In absence of aforesaid material, the petitioners have failed to make out a case of lawful appointments. The entire case is based upon factual controversy which cannot be gone into by this Court in exercising of its constitutional jurisdiction." 4. However, such order was assailed by the petitioners before the Hon'ble Supreme Court of Pakistan in CPLA No. 3440/2017 (and others), which were converted into appeals and allowed, While setting aside the impugned judgment passed by the learned Divisional Bench of this Court in the above petitions, with the directions to treat writ petitions of the petitioners as appeals before the Departmental Authority (Appellate Authority) and to be decided in accordance with law after hearing the appellant(s). Thereafter, the Chief Secretary, Government of Sindh through impugned order(s) dated 22.11.2021 has dismissed such appeals of the petitioners, which have been assailed by the petitioners in these petitions. 5. It will be advantageous to reproduce both the orders of relieving and order of termination passed by the Respondent No. 2 on 10.10.2016 and Respondent No. 1 on 22.11.2021 respectively, against the petitioners, which read as follows: GOVERNMENT OF SINDH LOCAL GOVERNMENT DEPARTMENT (SINDH LOCAL GOVERNMENT BOARD) No. SLGB/SCUG/AO/Gen/293 & 297 of 2013/2017/1708/ Karachi, dated 10 Oct 2016. To, The Director local Government Department, Karachi/Hyderabad/Sukkur/Larkana/Shaheed Benazir Abad/Mirpur Khas Division/ Subject: RELIVING OF OFFICER OF BPS-16/ADMIN/SCUG APPOINTED AFTER 2012-13 AND AFTERWARD AND WHOSE NAME IS NOT INCLUDED IN THE LIST OF SUCCESSFUL CANDIDATES SUBMITTED BEFORE HONOURABLE HIGH COURT OF SUKKUR IN CPD-293/2013 FILED BY MR. NADIM AKBER VS POS AND OTHERS. Whereas, the following officers of BPS-16/SCUG (Admire Branch) were declared successful and appointed in response to the advertisement of the posts of BPS-16 SCUG/Admin Branch published in the year 2011-2012. It is pertinent to mention that the list of successful candidates was also submitted in the year 2013 before the Honorable High Court of Sindh Bench at Sukkur in CPD- 293/2013 filed by Mr. Nadim Akber S/o Ali Akber V/s. Province of Sindh and others. Sr. # NAME WITH FATHER'S NAME 1Abdul Waseem Jamali S/o Rehmatullah 2Aneel Gul Juneejo S/O Ghulam Muhammad 3Sohail Ahmed Khan S/O Sadaruddin Khan 4Javed Khan S/O Aftab Khan 5Shafqat Hussain S/O Aftab Khan 6Kazim Ali Khan S/O Riaz Hussain Mughal 7Mujeeb Khan Durani S/O Late Haji Attaullah Khan 8Sher Zaman Khan S/O Haji Yakoob Khan Durrani 9Sohrab Khan Jakhirani S/O Kher Bux Khan 10Shakeel Ahmed S/O Pir Bux Khan 11Muhammad Nawaz S/O Rasool Bux Brohi
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12Zulfiqar Ali Marfani S/O Dhani Bux 13Musaib Khan S/O Asif Khan 14Shafeeq Ahmed Bhutto S/O Rahim Bux 15Ghulam Murtaza Jagirani S/O Muhammad Hassan 16Aaser Khan Mugrani S/O Amanullah 17Anwer Leghari S/O Alamgir Leghari 18Zahoor Hussain Rajpar S/O Niaz Muhammad 19Muhammad Khan Odho S/O Haji Meeral 20Ubaidullah S/O Abdul Wahid Soomro 21Khalid Ahmed Laghari S/O Bashir Ahmed 22Abdul Waheed S/O Ubaidullah Domki 23Humayoon S/O Imran Aslam Khan 24Rasool Bux S/0 Ghulam Asghar Chachar 25Ellahi Bux Bhanbhan S/0 Zahid Ali 26Nadeem Hyder Jalbani S/O Ali Haider 27Zulfiqar Ali S/O Muhammad Ali Bhutto 28Gada Hussain S/O Bahwal Khan Zardari 29Fayaz Hussain Zardari S/O Khadim Hussain Zardari 30Faisal Hassan S/O Haji Muhammad Hassan Dehri 31Syed Buland Shah S/O Syed Zulfiqar Ali Shah alias Syed Sajid Shah 32Shah Jahan Shah S/O Ameer Ali Shah 33Ghulam Murtaza Shah S/O Syed Mauj Darya Shah 34Hassan Ayoub S/O Choudhry Muhammad Ayoub 35Junaid Ahmed Chandio S/O Ali Anwar 36Irshad Ali Zardari S/O Moula Bux Zardari 37Shaheed Rlahi Bux S/0 Shahid Iqbal Siyal 38Zahid Hussain Jamali S/O Mir Maqbool Jamali 39Muhammad Rafiq Shaikh S/O Abdul Karim Shaikh 40Ghulam Muhammad S/O Sharif Mahar 41Maqsood Ali S/O Abdul Raheem Jatoi 42Furqan Bhagat S/O Abdul Salam Bhagat 43Amir Ali S/O Abdul Razzak Bhutto 44Ali Raza S/O Dost Ali Jessar 45Adeel Ahmed S/O Arz Muhammad Gopang 46Zulfiqar Ali S/O Ali Dino Khan Mahar 47Mir Mumtaz Ali S/O Mir Mehrab Khan Domki 48Sikandar Ali S/o Amiur Khan Mirani 49Ahmed Shah S/O Ghulam Shah Jilani 50Ghulam Hussain S/O Ali Nawaz 51Pervaiz Ahmed S/O Nafeez Ahmed Umrani 52Abid Latif S/O Abdul Lateef 53Aijaz Ali Shaikh S/O Nehal Khan
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54Mohsin Ali S/O Jamaluddin Shaikh 55Junaid Chandio S/O Ali Anwar Chandio 56Kashif S/O Fateh Khan 57Roshan Ali Lolai S/O Parwano Faqeer 58Faraz Khan Mughal S/O Riaz Khan Mughal 59Abdul Jabbar Mehar S/O Abdul Karim 60Malik Mujtaba Ayaz S/O Ayaz Malik 61Tabish Hussain S/O Aftab Hussain 62Nisar Ahmed Rahpoto S/O Kher Muhammad 63Fida Hussain Magsi S/O Bukhsal Khan Magsi 64Mehfooz Ali Shah S/O Karim Din Shah 65Sher Ali S/O Abdul Wahab 66Muhammad Ali S/O Abdul Karim Laghari 67Pir Bux S/O Muhammad Ibrahim Jamali 68Muhammad Rafiq S/O Hameedullah Khan Buledi 69Mir Aslam S/O Ali Gul alias Riyasat Ali Baloch 70Mushtaq Hussain S/o Ghulam Qadir Mangi 71Wahab Aziz S/0 Abdul Aziz Chacho 72Agha Sumar Khan S/O Agha Bashir 73Kashif Imtiaz S/O Imtiaz Ahmed Khan Junejo 74Abdul Jabbar S/O Muhammad Amin Thaheem 75Imtiaz Ahmed 5/0 Abdul Karim Soomro 76Sajjad Ahmed S/O Gul Baig Samiar 77Qamar Zaman S/o Ghulam Qadir Indhar 78Imran Ali Indhar S/o Mian Ashiq Hussain 79Bagan S/o Farid Khan 80Jhamandas S/O Shankar Lal 81Saeed Ahmed S/O Nisar Ahmed 82Darya Khan Magsi S/o Abdul Ghafoor Magsi 83Saim Imran S/o Imran Khan 84Sarfraz Khan S/o Akhtar Ahmed 85Mohsin Ali S/O Hakim Ali 86Mr. Mumtaz Ali S/o Muhammad Misri Khan Therefore, it is required to relieve an officer appointed in the year 2012-13 and afterward and working against the post of BPS-16 of SCUG Service (Admin Branch), if the name of person is not included in the list of successful candidates submitted before the Honorable High Court of Sindh Bench at Sukkur in C.P. No. D-293/2013 filed by Mr. Nadim Akber S/o Ali Akber V/s. Province of Sindh which is reproduced above. SECRETARY TO GOVERNMENT OF SINDH" "No. SO (APLS-III)" S&GAD/24(454)/2018 GOVERNMENT OF SINDH SERVICES, GENERAL ADMINISTRATION & COORDINATION DEPARTMENT/Karachi dated the 22nd November 2021 ORDER
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WHEREAS, Honorable Supreme Court of Pakistan vide Orders dated 06.12.2017 & 29.01.2018 converted Civil Petitions No. 3440 of 2017, 4780 of 2018 & Other into appeals before the departmental authority and, send them for being decided accordance with law after hearing the appellants. WHEREAS, The recruitment process in Sindh Local Government Board, to fill the vacancies of BS-16 & BS-17 in four Branches i.e (Administration, Accounts, Engineering & Medical Branch) of SCUG Service was initially started in the year 2011 by publishing advertisement in leading newspapers dated 24.11.2011 & 26.12.2011. Later on Local Government Department, in pursuance of order of Honorable High Court dated 22.02.2012 in C.P.No. -D-3406 of 2011 winded the entire process of recruitment and in order to comply with the strict criteria laid down in Rule 4(2) of Sindh Council unified Grade (SCUG) Service, Rules 1982, invited fresh applications by advertising in leading newspapers dated 24.02.2012 & 26.02.2012. All the applicants, who met out the prescribed criteria were called for written test/Interview at 23 designated test centers throughout the province on 1I.O3.2012. Pursuant to that public notice, candidates possessing prescribed qualification and having domicile of Sindh province were allowed in the written test and those who have passed the written test were called for interview before the selection committee, noticed dated 09.12.2011. The Successful candidates were given offer orders dated 30.11.2012 for appointment in BS-16 & BS-17 in SCUG Service (Administration Branch). WHEREAS, The above mentioned recruitment process made in the SLGB was challenged in the High Court of Sindh, Circuit Court Sukkur by fling C.P. No. 293/2013 by Mr. Nadeem Akber & another C.P.No D-297/2013 filed by Umair Ahmed Others. The SLGB in the subject petitions submitted its report dated 08.05.2013 containing a list of successful candidates including 103 in (BS-17) & 86 in (BS-16) in the Honorable High Court Sukkur. The Honorable Court vide order dated 3I.O7.2013 dismissed CP.No. 293/2013 and other allied petitions, consequently all the successful candidates were issued appointment orders on 05.08.2013. Later on other petitions CP.No. D1034/2013 & C.P.No. D-777/2013 were also filed by Sarfraz Ahmed Panhwer & Abdul Sattar in the High Court Larkana. The Local Government Board also submitted the list of successful candidates, appointed for the posts of Town officer (BS-16) & Chief Officer (BS-17) in the Honorable Court. AND WHEREAS, the Secretary Local Government Board issued two letters dated 10.10.2016, addressed to the Director Local Government Department, Karachi/Hyderabad/ Sukkur/Larkana/Shaheed Benazir Abad/Mirpur Khas Sindh, with advice to relieve the officers of BS-16 & BS-17, SCUG (Admin Branch) in Local Government Board appointed in the year 2012-2013 and afterwards, if the name of the person is not included in the list of successful candidates, submitted before the Honorable High Court of Sindh Bench Sukkur in C.P. No. D-293/2013. Subsequently Mr. Noorullah Abro and others, being aggrieved by the relieving letter/Order dated 10.10.2016, filed C.P. No. D-5542/2016 in the High Court of Sindh Karachi, challenging their relieving order. The Honorable High Court of Sindh in its detailed Judgment dated 27.09.2017 dismissed the said petition along with pending applications. Subsequently SLGB vide order dated 4th October 2017, relieved 37 officers from their posts & vide another intimation dated 4th October, 2017, Other 29 officers were informed that the constitution petitions filed by them have been dismissed by the Honorable High Court. Agha Fahad Khan, Abdullah Palejo and other petitioners filed Civil Petitions No. 3440 of 2017, Civil Petition Nos. 4780 of 2017 & 4860 of 2017, the Honorable Supreme Court of Pakistan vide orders referred above converted all the ' petitions into departmental appeals. AND WHEREAS, The appellant, Agha Fahad Ahmed Khan was given opportunity of personal hearing on 26.07.2021. During the Course of personal hearing the applicant failed to produce any substantial record which can prove that he had qualified the written test/Interview, whereas the view point of the representative of the Department was that the name of appellant is not reflected
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in the list of successful/selected candidates, as already submitted before the Honorable High Court. NOW THEREFORE, after detailed examination of available record, provided by the Local Government Department and hearing both the parties i.e. appellant and the representative of Local Government Department on 26.07.2021. I, Mumtaz Ali Shah, Chief Secretary, Sindh/ Authority, hereby, reject the appeal of the appellant. (MUMTAZ ALI SHAH) CHIEF SECRETARY TO GOVT. SINDH/ APPELLATE AUTHORITY No. SO (APLS-III) S&GAD/24(454)/2018 Karachi, the 22nd November 2021 Copy is forwarded for information & necessary action to: 1. The Secretary to Government of Sindh, Local Government Department, (with the request to convey the Appellate Order to the Appellant). 2. The Appellant Agha Fahad Ahmed Khan. 3. The Office File.": 6. Learned counsel for the petitioners have argued that the impugned order dated 22.11.2021 passed by the Chief Secretary, Government of Sindh, in the case of petitioners is perverse based on mala fide and does not disclose any valid reasons while rejecting the appeals of the petitioners, whereas, neither the facts have been examined nor the record produced by the petitioners in respect of their appointment after compliance of all the codal formalities have been taken into consideration while passing the impugned order. According to learned counsel for the petitioners, the Chief Secretary, Government of Sindh, being an Appellate Authority was under legal obligation to make scrutiny of the record of each and every case in detail and thereafter providing complete opportunity of being heard to the petitioners and speaking order was required to be passed without being influenced by the decision in the case of Nadeem Akbar vs. Province of Sindh and others in C.P. No. D-293/2013 passed by the Divisional Bench Sukkur of this Court, wherein, petitioners were not the party nor the issues involved in the instant petitions were the subject matter of the petitions. It has been further contended by the learned counsel for petitioners that a detailed inquiry has been carried out in respect of petitioners' appointments, wherein, all the material facts and scrutiny of the relevant record relating to appointment of the petitioners on their respective posts has been made and thereafter it has been recommended that the proceedings initiated by the Secretary, Sindh Local Government Board against the petitioners without issuing them show-cause notices were without approval of the Sindh Local Government Board and the Ministry of Local Government, whereas, no opportunity of personal hearing was provided, therefore, the relieving order, whereby, the petitioners were relieved from their services was illegal. It has been further contended by the learned counsel for petitioners that the Scrutiny Committee has recommended the reinstatement of the petitioners after scrutiny of personal record, however, Chief Secretary, Government of Sindh, has not taken into consideration the findings of the scrutiny report, which was submitted pursuant to order passed by the Honourable Supreme Court in Civil Appeal Nos.1592 to 1612 of 2017. According to learned counsel for the petitioners, it has now come on record that the order of relieving and termination of the petitioners from the services passed by both the authorities are without lawful authority and based on mala fide, therefore, the same are liable to be set-aside. During the course of hearing of above petitions, and after perusal of the comments filed on behalf of the official respondents, it has been observed that the claim of the petitioners for having been appointed on their respective posts, after complying with all the codal formalities in the year 2012- 2013, has not been denied nor could be controverted by the learned counsel for the respondents, on the contrary, learned Additional Advocate General Sindh and the officers of Sindh Local Government Board present in Court, frankly conceded that as per enquiry/scrutiny report submitted by the Sindh Local Government Board, it has come on record that the appointments of
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the petitioners were made after compliance of all the codal formalities, however, on account of some misrepresentation of facts and the comments filed on behalf of the department in the case of Nadeem Akbar us. Province of Sindh and others in C.P. No. D-293/2013, in which petition, the petitioners were neither party, nor any scrutiny or enquiry whatsoever was conducted. Such petition was decided by the Divisional Bench Sukkur of this Court vide order dated 22.02.2012 with directions to the Sindh Local Government Board "to comply with Rule 4(2) (ii) of SCUG Rules, 1982 in respect of making recommendations for recruitment against these posts after such examination or test and interview as may be conducted by Selection Committee". However, it appears that while misinterpreting the aforesaid order, without scrutiny of record or confronting the petitioners with such allegations, their services have been terminated in an abrupt manner without providing any opportunity of being heard. 7. From perusal of the aforesaid identical order(s) passed by the Chief Secretary to Government of Sindh, it has been observed that on similar grounds and identical set of allegations i.e. names of the petitioners did not appear in the list of successful candidates, petitioners were relieved in the first instance pursuant to order(s) dated 10.10.2016, and, thereafter, the services of the petitioners were terminated through impugned order(s) dated 22.11.2021 by the Chief Secretary, Government of Sindh, however, without pointing out any violation of the terms of the service or recording any adverse findings on the eligibility of the petitioners to be appointed on such posts. It has further transpired that the petitioners have never been subjected to any kind of disciplinary proceedings or charged with any allegations of corruption and/or corrupt practices. The only allegation against the petitioner is that their names did not appear in the list of successful candidates, which according to respondents, was produced in C.P. No. D-293/2013, which was filed before the Sukkur Bench of this Court, wherein, petitioners were not impleaded as party. 8. It is pertinent to note that in response to notices issued to the respondents as well as Advocate General Sindh, through statement dated 24.01.2022, AAG Sindh filed para-wise comments on behalf of Secretary, Sindh Local Government Board in C.P.No. D-7401/2021, wherein, except some partial denial to contents of Para-6 of petition relating to delay in issuance of appointment order, the claim of the petitioners and the documents, including copy of advertisement copy of application of the petitioner, result of written examination showing the petitioner's name at Serial No. 31, interview call offer letter, acceptance letter, medical certificate appointment order of the petitioner in BS-17 joining report allowed to work report transfer orders, assumption of charge report, transfer order. relieving report, transfer order, Ex-Pakistan Leave, copy of service book of the petitioner and salary disbursement receipts of the petitioner, produced through statement filed on behalf of the petitioner pursuant to order passed by this Court on 09.12.2022 have neither been disputed or denied. Learned AAG and the officers of SLGB were specifically enquired, as to whether, authenticity of the documentary evidence produced by the petitioners in Court, which was also subjected to detailed scrutiny by a high powered enquiry committee, constituted for the purposes of scrutiny of the record relating to appointment of petitioners, is disputed by…
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