Swapan
Kumar Pal & Ors Vs. Samitabhar Chakraborty & Ors [2001] Insc 287 (9 May 2001)
G.B.
Pattanaik & B.N. Agrawal Pattanaik,J.
With Civil
Appeal No. 3767/2001. [@ Petition for Special Leave to Appeal (Civil) No. 6089
of 1998] (With Appln. For condonation of delay in filing SLP)
L.I.T.J
The
appeal filed by the private persons and the Special Leave Petition filed by the
Union of India, are directed against one and the same judgment of the Central
Administrative Tribunal, Calcutta Bench in O.A. No.1360 of 1990. Though, the
special leave petition by the Union of India is barred by limitation, but in
view of the fact that the leave has been granted by this Court at the instance
of the private persons and the judgment of the tribunal is under challenge in
appeal, it would be meet and proper to condone the delay in filing the special
leave petition, and we accordingly condone the same and grant leave therein.
The
inter se seniority in the cadre of Senior Clerk under the Railway
Administration between the promotees from the grade of Office Clerk (Clerk
Grade II) against 66-2/3% quota and the in-service graduates, working as Junior
Clerks, who were promoted through a limited departmental examination against
13-1/3% quota is the subject matter of dispute. By the impugned order of the
tribunal, the promotees who were initially promoted on ad hoc basis and later
on, whose services were regularised, have been held to be entitled to count
their ad hoc period also for the purpose of reckoning their seniority in the
cadre of Senior Clerk, whereas, according to the Railway Administration as well
as according to the appellants in Civil Appeal No.247/97, the criterion for
determination of seniority being the date of regular promotion after due
process, the ad hoc period would not count for reckoning the seniority in the
promotional grade, which is the grade of Senior Clerk in the case in hand.
Thus, the sole question that arises for consideration is whether the services
rendered by the promotees on ad hoc basis in the post of Senior Clerk can be
allowed to be counted for the purpose of their seniority in the cadre of Senior
Clerk? The cadre of Office Clerk in the scale of Rs.950-1500 is filled up,
66-2/3% by direct recruitment through the agency of the Railway Recruitment
Board and 33-1/3% by promotion by selection of specified Group D staff, the
minimum educational qualification for a direct recruit being matriculate or its
equivalent examination with not less than 50% marks in the aggregate. The next
promotional post is the senior clerk in the scale of pay of Rs.1200-2040. Under
the Railway Establishment Manual, Paragraph (174), of the total vacancies in
the grade, 20% of the posts are filled up by direct recruitment through the
Agency of the Railway Recruitment Board, 13-1/3% through a limited departmental
competitive examination from amongst the serving graduates clerks in the scale
of pay of Rs. 950-1500 through the agency of the Railway Recruitment Board and
66-2/3% are filled up by promotion from the Office Clerks. The present
appellants were appointed on different dates as Office Clerks (Clerk Grade II)
in the year 1981-82, and all of them are graduates. The private respondents
were non-graduates and were serving as Office Clerks in the scale of pay of
Rs.950- 1500. On diverse dates between 9.12.1982 to 07.1.1984, these private
respondents were promoted to the post of Senior Clerk on ad hoc basis, as no
regular recruitment could be made by holding suitability test, because of
certain stay orders passed by different Courts.
On
18.1.85, the appellants were declared suitable for promotion to the grade of
Senior Clerk against 13-1/3% meant for in-service graduate office clerks. The
suitability test of the private respondents, who had been promoted on ad hoc basis
was held and the result was declared on 28.2.1985.
The
Railway Administration published a seniority list on 01.01.88, but the same had
not been prepared in accordance with the relevant provisions for determination
of seniority, as contained in paragraph 302 of the Railway Establishment
Manual. A revised seniority list, therefore, was prepared on 02.11.89, in which
list, the appellants were shown senior to the private respondents in the cadre
of Senior Clerk, on the basis of the date of regular promotion, after due
process of selection. The private respondents herein, challenged the legality
of the aforesaid seniority list by filing O.A. No. 1360/90 in the Central
Administrative Tribunal, Calcutta Bench. By the impugned judgment, the tribunal
having allowed the O.A. on the conclusion that the period of ad hoc service of
the respondents would count for their seniority, since the suitability test was
delayed by the Administration over which the private respondents had no hand and
having quashed the seniority list published on 2.11.89, and the private
respondents having been declared senior to the present appellants, the present
appeal has been filed by grant of special leave and the Railway Administration
has also filed the special leave petition.
Mr.
L.N. Rao, the learned senior counsel, appearing for the appellants and Mr. P.P.Malhotra,
the learned senior counsel, appearing for the Railway Administration, contend
that the question of inter se seniority in the cadre of Senior Clerk being
governed by the provisions contained in paragraph 302 of the Railway
Establishment Manual and in case of promotees, the criterion for determination
of seniority being the date of regular promotion, after due process, the period
of service rendered as ad hoc appointees cannot be counted for the purpose of
seniority and the tribunal, therefore, committed serious error in counting the
said ad hoc period and directing the private respondents to be senior to the
appellants. It is further contended that the promotion of a railway servant to
fill any post, whether a selection post or a non-selection post being subject
to his found fit and only after passing the test, which is condition precedent
for being considered fit to hold the promotional post and such a test in case
of promotees having been made only in the year 1985 and the results thereof
having been declared only on 28.2.1985, so far as the private respondents are
concerned, the period prior to that date, during which they were holding the
promotional post on ad hoc basis, could not have been counted for determining
their seniority in the cadre of Senior Clerk and the impugned order of the
tribunal, therefore is erroneous. It was then contended that in view of the
provisions contained in the Railway Establishment Manual, providing the
procedure for promotion to the post of Senior Clerk, the ad hoc promotion given
to the private respondents cannot, but be held to be promotion de hors the
rules, and the conclusion of the tribunal to the contrary, solely on the ground
that the suitability test had not been held at regular intervals, as provided
in paragraph 214(c)(v) of the rules and the employees had no fault, is
erroneous. Lastly, it is contended that in view of the decision of this Court
in the case of Anuradha Mukherjee and Ors. vs. Union of India and Ors., 1996(9)
S.C.C. 59, clearly indicating that ad hoc appointees being appointees de hors
the rules, cannot get their seniority from the date of their ad hoc
appointment, but only from the date on which they were actually selected and
appointed, in accordance with the rules, interpreting the very provisions of
the Railway Establishment Manual, the impugned decision of tribunal is
unsustainable.
Mr.
P.P. Rao, the learned senior counsel, appearing for the private respondents, on
the other hand contended that inaction on the part of the Railway
Administration, to hold the suitability test for adjudging the eligibility of
the Office Clerks for promotion to the post of Senior Clerk against their quota
of 66-2/3% and the promotions granted to such office clerks on ad hoc basis,
who were eligible and found suitable, cannot be a ground for not counting the
ad hoc period for reckoning seniority in the cadre of Senior Clerk, when these promotees
were otherwise suitable and in fact continuously holding the post of Senior
Clerk on ad hoc basis till their suitability was adjudged by holding the test.
The tribunal, therefore, was justified in reckoning the ad hoc period for the
purpose of their seniority in the cadre of Senior Clerk. Mr. Rao further
contended that these promotees having been promoted on ad hoc basis and being
otherwise duly qualified to hold the promotional post and, thereafter having
passed the suitability test later on, the past services rendered by them on ad
hoc basis has to be given credit, and the tribunal, therefore was right in its
conclusion. Mr. Rao also urged that on account of lapses on the part of the
administration in not holding the suitability test at regular intervals, as
required under the relevant provisions of the Railway Establishment Manual, the
respondents cannot be made to suffer and great injustice would be meted out to
them, if the period rendered as ad hoc is not taken into account for the
purpose of seniority. Mr. Rao, further urged that the promotees, not having
been promoted beyond 66-2/3% quota available for them and in fact, there having
been no impediment for granting regular promotion, which was not done because
of the latches on the part of the Railway Administration in holding the
suitability test, there is no rhyme or reason, not to count the ad hoc services
for the purposes of seniority in the promoted cadre of Senior Clerk. Mr. Rao
urged that the decision of this Court in Anuradha Mukherjees case will have no
application to the case in hand as the Court in that case was not dealing with
the fact situation, where the Administration is guilty of not having the
suitability test at regular intervals, as required under the Establishment
Manual. Mr. Rao lastly submitted that during the pendency of this appeal, the
competent authority having approved and regularised the ad hoc officiating
promotion, as a one time measure and as a special case, as per the letter of
the Chief Personnel Officer dated 17th July, 2000, in the eye of law, it cannot
be said that they continued as ad hoc, and therefore, the conclusion of the
tribunal is unassailable.
In
view of the rival submissions made by the counsel for the parties, the
following questions arise for our consideration:
(a)
What is the Rule, which governs the inter se seniority between the two
competitive claimants in the cadre of Senior Clerk?
(b)
The so-called ad hoc promotion of the respondents to the cadre of Senior Clerk,
whether can be held to be a regular promotion, after due process of selection,
merely because the suitability test had not been held at regular intervals, as
was required to be held under paragraph 214(c)(v) of the Railway Establishment
Manual?
(c) Is
it possible to hold that on regular promotion being given, after adjudging the
suitability of the ad hoc employees by holding test, it dates back to the date
of ad hoc promotion?
(d)
Can it be said that the earlier decision of this Court in Anuradha Mukherjees case,
will have no application to the fact situation of the present case?
So far
as the first question is concerned, the post of Senior Clerk in the scale of
pay of Rs.1200-2040 being filled up by direct recruitment, by promotion and by
limited departmental competitive examination from amongst serving graduates,
the provisions of paragraph 302 of the IREM would govern the seniority in the
grade. The aforesaid provision is extracted herein below in extenso: 302.
Seniority in initial recruitment grades - Unless specifically stated otherwise,
the seniority among the incumbents of a post in a grade is governed by the date
of appointment to the grade. The grant of pay higher than the initial pay
should not, as a rule, confer on a railway servant seniority above those who
are already appointed against regular posts. In categories of posts partially
filled by direct recruitment and partially by promotion, the criterion for
determination of seniority should be the date of regular promotion after due
process in the case of promotees and the date of joining the working post after
due process in the case of direct recruit, subject to maintenance of inter-se
seniority of promotees and direct recruits among themselves. When the dates of
entry into a grade of promoted railway servants and direct recruits are the
same they should be put in alternate positions, the promotees being senior to
the direct recruits, maintaining inter-se seniority of each group.
Note-
In case the training period of a direct recruit is curtailed in the exigencies
of service, the date of joining the working post in case of such a direct
recruit shall be the date he would have normally come to a working post after
completion of the prescribed period of training.
On a
plain reading of the aforesaid provision, it is crystal clear that date of
regular promotion after due process of selection would be the date from which
seniority in the cadre of Senior Clerk would count. In the case in hand, the
appointment of the respondents in the cadre of Senior Clerk against 66-2/3%
quota as well as the appointment of the appellants in the said grade against
13-1/3% quota, through limited departmental competitive examination are by way
of promotion from the cadre of Office Clerk. The inter se seniority, therefore,
of these two category of personnel in the cadre of Senior Clerk, would be from
the date on which each one of them were promoted after their regular selection
by due process of selection. In other words, when promotion is given after
holding the suitability test, on adjudging the suitability of the employee,
then the promotion can be held to be a regular promotion and not earlier. In
the case in hand, so far as the appellants are concerned, the relevant date
would be 18.1.1985 and so far as the respondents are concerned, the relevant
date would be 28.2.1985. The ad hoc services rendered by the respondents for
different periods from 9.12.1982 till they were regularly absorbed on adjudging
their suitability by holding test, cannot be reckoned for the purposes of their
seniority in the cadre of senior clerk. The conclusion of the tribunal is
contrary to the aforesaid provision of the Railway Establishment Manual and
cannot be sustained.
Coming
to the second question, the relevant provision dealing with this aspect is
paragraph 214 of the Railway Establishment Manual. Paragraph 213 also deals
with the question of promotion. Both the above-said paragraphs are quoted
herein below in extenso:
213.
Promotion.
(a) A
Railway servant may be promoted to fill any post whether a selection post or a
non- selection post only if he is considered fit to perform the duties attached
to the post. The General Manager or the Head of Department or Divisional
Railway Manager may prescribe the passing of specified departmental or other
tests as conditions precedent to a Railway servant being considered fit to hold
specified post; such rules should be published for the information of the staff
concerned.
(b)
Unless specifically provided otherwise, the promotion shall be made without any
regard for communal or racial consideration.
214.(a)
Non-selection posts will be filled by promotion of the senior most suitable
Railway servant . Suitability whether an individual or a group of Railway
Servants being determined by the authority competent to fill the posts on the
basis of the record of service and/or departmental tests if necessary. A senior
Railway servant may be passed over only if he/she has been declared unfit for
holding the post in question. A declaration of unfitness should ordinarily have
been made sometime previous to the time when the promotion of the Railway
servant is being considered.
(b)When,
in filling of a non-selection post, a senior Railway servant is passed over the
authority making the promotion shall record briefly the reason for such supersession.
(c)In
respect of promotion to non-selection post, the following principles should be
followed:-
(i)Staff
in the immediate lower grade with a minimum of 2 years service in that grade
will only be eligible for promotion. The service for this purpose includes
service, if any rendered on ad hoc posts followed by regular service without
break. The condition of two years service should stand fulfilled at the time of
actual promotion and not necessarily at the stage of consideration.
(ii)The
number of eligible staff called for consideration should be equal to the number
of existing vacancies plus those anticipated during the next four months due to
normal wastage (i.e. retirement/superannuation), likely acceptance of request
for voluntary retirement, staff approved to go on deputation to other units,
staff already empanelled for the ex-cadre posts, creation of additional posts
already sanctioned by the competent authority, and staff likely to go out on
transfer to other Railways/Divisions.
(iii)Where
non-selection posts are filled from different categories of staff, no hard and
fast limits need be prescribed as to the number of the candidates to be
admitted from each eligible category. In cases where posts are to be filled on
the quota basis it should be ensured that each category is adequately represented
within the overall number of candidates called up. Employees passing the
suitability test should only be placed in the select list. Employees not
qualifying in the test should not be taken merely to make up the quota fixed.
(iv)An
employee who has passed a suitability test once need not be called for the test
again and should be eligible for promotion as and when vacancies arise.
(v)A
suitability test should be held at the interval which should not be less than
six months. All the eligible candidates as per their seniority including those
who failed at the last test should be called. The period of six months is
reckoned from the date of announcement of the result.
(vi)If
an employee fails in a suitability test but is called up again, a suitability test,
after a time lag of six months and he passes the same, he should be given
preference over his junior who had passed the suitability test earlier than him
but is still waiting to be promoted for want of a vacancy.
It is
thus apparent that a promotion can be given only when the employee concerned is
considered fit to perform the duties of the higher post and a person can be
considered fit only after he passes the prescribed test held for the purpose.
The post of Senior Clerk being a non-selection post, it is required to be
filled up by promotion of the senior-most suitable railway servant in the
feeder cadre. A senior railway servant can be superseded when he/she is
declared unfit for holding a promotional post. The rules also further provide
that when a senior railway servant is passed over, the authority must record
briefly the reasons for supersession. The procedure for making promotion to
non-selection post has been indicated in paragraph 214(c) referred to above.
Clause (iii) of para 214(c), unequivocally indicates that the employees only
after passing the suitability test, should be placed in the select list and
further those, who do not pass the qualifying test, they cannot be given
promotion merely to make-up the quota fixed for them. It is no doubt true that
under Clause (v) of paragraph 214(c), a suitability test is required to be held
at interval, which should not be less than six months.
But in
a case where such suitability test had not been held, as in the case in hand
and persons are promoted from the Junior Clerk to Senior Clerk, on the basis of
their seniority on ad hoc basis, such ad hoc promotion by no stretch of
imagination can be held to be regular promotion after due process of selection.
It can be a promotion by due process only when the suitability test, as
indicated in paragraph 214(c)(iii) is held and the concerned employee qualifies
the said test. It is necessary in this connection to notice some of the
decisions relied upon by Mr. Rao, appearing for the respondents, in support of
the conclusion of the tribunal that the suitability test not having been held
earlier, ad hoc promotion must be held to be regular promotion. The first case
which Mr. Rao relied upon is the case of G.P.Doval and Ors. vs. The Chief
Secretary, Government of U.P. and ors., 1985(1) S.C.R.70. In the said case, the
inter-se seniority amongst the Khandsari Inspectors was the subject matter of
dispute. There was no rule, governing the inter se seniority and in the absence
of any specific rule of seniority, governing a cadre of a service, the Court
held that length of continuous officiation will provide a more objective and
fair rule of seniority. It is in this context, this Court had observed that if
a stop-gap appointment is made and the appointee appears before the Public
Service Commission, when the latter proceeds to select the candidates and is
selected, there is no justification for ignoring his past service.
But
this decision will have no application where a rule subsists, governing the
inter se seniority in a cadre and in the case in hand, the rule is paragraph
302 of the IREM.
Therefore,
the general principles enunciated in the aforesaid decision will have no
application. The next case relied upon by Mr. Rao was the case of S.L.Kaul and
Ors. vs. Secretary to Govt. of India,
Ministry of Information and Broadcasting, New Delhi and Ors., 1989 Supp.(1) S.C.C.147. In this case, the seniority in the
cadre of Monitor in All India Radio was the subject matter for consideration.
The
post of Monitor was upgraded and made equivalent to the post of Central
Information Service Grade IV and was re-designated as Sub- Editors
(Monitoring). The Central Government did the upgradation and enhancement of pay
by order dated 29th
June, 1968. But the
relevant schedule was amended and the posts were included in the Central
Information Service Grade IV by Notification dated 9th May, 1972. It is in this context, this court held that the Monitors
in All India Radio could be legitimately held to be in Central Information
Service Grade IV w.e.f. 29.6.1968 and not from 09.5.1972, as they had been
inducted into Grade IV of the Central Information Service from 29th June, 1968,
when the post was brought at par with Group IV and the post was re-designated
as Sub-Editor and the employees had received that post and pay after obtaining
the approval of the department of Personnel as well as the Union Public Service
Commission. It is in that context, this Court had observed that even though,
the actual inclusion of the post of Monitor in the Central Information Service
was made much later, but the fact remains that they were to all intent and
purposes, treated as Grade IV post in the Central Information Service with
effect from the date when the post of Monitor was re-designated with revised
pay scales and became equivalent to Grade IV in the Central Information
Service. Therefore, on account of the lapse on the part of the Government, the
employees cannot be made to suffer.
This
decision also in our considered opinion will have no application inasmuch as under
the relevant rules, holding a test and passing of the test is a condition
precedent for promoting an employee from the Office Clerk to the Senior Clerk
and any promotion in contravention of the same cannot be a promotion on regular
basis. The next case relied upon by Mr. Rao was the case of Devendra Narayan
Singh and Ors. vs. State of Bihar and
Ors.,1996(11) S.C.C. 342. In this case the year of allotment of an officer was
the subject matter of consideration. The concerned authority had committed
error by not preparing the select list for the year 1983 and pursuant to the
directions of the Supreme Court, the appropriate authority on re-consideration,
included the names in the select list for the year 1986.
The
Court on consideration of the facts of that case came to hold that in the eye
of law, the select list can be held to be a select list for the year 1983 and,
therefore, the year of allotment of the employee concerned is required to be
determined on the basis that he was in the select list for the year 1983,
though that list was prepared in the year 1985 and was approved by the Union
Public Service Commission in the year 1986. We fail to understand, how the
aforesaid judgment will be of any application to the case in hand, when because
of interim direction in pending cases, regular promotion had not been given and
the cadre of Senior Clerk was being managed by granting ad hoc promotion to the
respondents. The next case relied upon by Mr. Rao is the case of Suraj Parkash
Gupta and Ors. vs. State of J & K and Ors., 2000(7) S.C.C. 561. In the
aforesaid case, on consideration of the relevant rules governing the service
conditions of the Assistant Engineers of the J & K Government, the Court
had observed that ad hoc or temporary service of a person, appointed by
transfer as an Assistant Engineer or by promotion as an Assistant Executive
Engineer can be regularised through the Publics Service Commission and
Departmental Promotion Committee from an anterior date in a clear vacancy in
his quota, if he is eligible and found suitable for such transfer or promotion,
as the case may be, and his seniority will count from that date. The aforesaid
conclusion was drawn because of the provisions of Rule 23 and Rule 15 of the J
& K Rules but in the case in hand, there is no provision, which has been
brought to our notice, which enables the appointing authority to regularise a
promotion from an anterior date, though the suitability test is held at a later
date. In the absence of any such provision in the rules in question, the ratio
of the aforesaid decision, on interpretation of the relevant rules of J & K
Engineering Rules will have no application. In the aforesaid premises, we have
no hesitation in coming to the conclusion that merely because a suitability
test had not been held at regular intervals, an employee promoted on ad hoc
basis can claim that it is a regular promotion after due process of selection.
As such the seniority of promotees in the cadre of Senior Clerk can be counted
only from the date of regular promotion, after due process of selection.
So far
as the third question is concerned, it is no doubt true that the respondents,
who got their ad hoc promotion between the period 9th December 1982 to 7th
January, 1984, were later on found suitable in the test that was held and the
result of the said test was published on 28th February, 1985. It is also true
that they had been continuing from their respective date of ad hoc promotion
till they were regularised, after being selected through due process. But that
by itself cannot confer a right on them to claim the ad hoc period of service
to be tagged on, for the purpose of their seniority inasmuch as there is no
provision which says that an employee on being regularly promoted, such regular
promotion would date back to the date of original promotion in the cadre, which
might have been on ad hoc basis. When the service conditions are governed by a
set of rules, in the absence of any rules, it is difficult to hold that regular
promotion would date back to the date of ad hoc promotion itself. We,
therefore, answer the question in the negative.
So far
as the earlier decision of this Court in Anuradha Mukherjees case, [1996 (9)
S.C.C. 59], is concerned, to which, one of us (G.B.Pattanaik, J), was a party,
the Court was considering the question of seniority in the very cadre, as in
the case in hand. On consideration of the relevant provisions, it did consider
the case of appointees de hors the rules, in paragraph 15 of the said judgment,
and it was held that appointees de hors the rules can get seniority not from
their initial appointment, but from the date on which they are actually
selected and appointed, in accordance with the rules and their appointment and
seniority would take effect from the date of selection, after due completion of
the process. Mr. Rao contends that in the case of Anuradha Mukherjees case, the
Court had never faced the question of non-holding of suitability test, as
required under law. But that in our view, will not change the effect of the
judgment. The ad hoc promotion made in the present case, without holding any
test for adjudging the suitability, has to be held promotion/appointment de
hors the rules, and therefore, the ratio of the aforesaid judgment would apply
also to the case in hand. Consequently, any period served by any promotee prior
to 28.2.1985 on ad hoc basis cannot be counted for the purposes of seniority in
the cadre of Senior Clerk.
In
view of our conclusion on the aforesaid four questions, we unhesitatingly hold
that the impugned judgment of the tribunal is wholly unsustainable in law, and we
, accordingly set aside the same. Necessarily, therefore, the seniority list as
on 01.6.1989 and published on 02.11.1989 is affirmed and O.A.No. 1360 of 1990
stands dismissed.
Before
we part with this case, it would be necessary also to examine a situation which
arises subsequent to the impugned judgment of the tribunal, while the appeal
was pending in this Court. On behalf of the respondents, an interlocutory
application had been filed, appending the letters dated 25.2.1999 and
17.7.2000. Mr. P.P. Rao, the learned senior counsel, appearing for the
respondents placed reliance on the aforesaid document dated 17.7.2000 and
contended that the competent authority having approved the regularisation of ad
hoc officiating promotion, as a one time measure and as a special case, there
would not be any justification not to treat that period for the purpose of
seniority and, therefore, the conclusion of the tribunal can be sustained on
this ground also. It is true that the document has come into existence while
the appeal was pending and the appellants have not taken any steps by way of
amending the memorandum, but the very proposal for regularisation of ad hoc
period of service, as indicated in the letter of the Divisional Railway Manager
dated 25.2.99 would establish the purpose behind such regularisation. The
competent authority felt that unless the ad hoc period is regularised, future
complications, consequent upon the retirement may arise. It is, therefore, not
to deny any retiral benefit, the ad hoc promotion was sought to be regularised
and the appropriate authority did approve the same as a one time measure with
the caution that it should not happen in future. But that would not change the
principle of inter se seniority, which is governed by the provisions, contained
in paragraph 302 of the Railway Establishment Manual, which we have already
considered and answered. Then again, from the aforesaid letter of approval
dated 17.7.2000, it is not clearly discernible, as to whether under the order
in question, it is the service of these respondents which was sought to be regularised.
We need not further delve into the matter, as in our view the so-called regularisation
of ad hoc officiating promotion would only confer the retiral benefit to the
concerned employees and would not count for the purposes of seniority in the
cadre which has to be determined in accordance with the rules, as already
discussed. These appeals are accordingly allowed. There would be no order as to
costs.
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