Citation : 2015 Latest Caselaw 3299 ALL
Judgement Date : 16 October, 2015
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Special Appeal No. 632 of 2015 Committee of Management, Kisan Inter College & Anr. ------- Appellants Versus State of U.P. & Ors. ------- Respondents Hon'ble Krishna Murari, J.
Hon'ble Amar Singh Chauhan, J.
This intra court appeal under the Rules of the Court is directed against the judgment and order dated 17.08.2015 passed by learned Single Judge on Writ Petition No. 38873 of 2015 filed by the petitioner-appellant.
By means of the said writ petition, challenge has been made to the order dated 03.07.2015 passed by Regional Level Committee, Basti Region, Basti superseding the petitioner-appellant, committee of management and appointing the Principal, Government Inter College, Basti as authorised controller to hold the election of the committee of management within one month after obtaining a list of the members of the General Body from Assistant Registrar, Firms, Societies and Chits, Gorakhpur. Learned Single Judge disposed of the writ petition directing that the dispute with respect to members of the General Body of the society be decided by the Assistant Registrar, Firms, Societies and Chits, Gorakhpur and after finalising the list of the General Body, the same be forwarded to the District Inspector of Schools for conducting elections of the committee of management of the institution and till then, the authorised controller as appointed by the Regional Level Committee vide order dated 03.07.2015 shall continue.
We have heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Uma Nath Pandey for the appellants, learned Standing Counsel for State respondents, Shri Anil Pandey for respondent no. 5 and Shri Uma Kant appearing for respondent no. 6.
There is a long standing dispute between the parties and the case has chequered history, however, facts in brief, relevant for the purposes of the case, are as under.
There is a duly registered society in district Basti known as Jai Kisan Ucchatar Madhayamik Vidyalaya, Lalpur Imililyadheesh, Basti. The society was constituted and registered in 1972 and has been renewed from time to time. The society runs an educational institution by the name of Jai Kisan Inter College, which is on the grant-in-aid list of the State Government upto High School while recognition has been granted for imparting education upto Intermediate. The institution is duly governed by the provisions of the U.P. Intermediate Education Act, 1921. The institution has approved Scheme of Administration and is run and managed by a duly elected committee of management under the provisions of the Scheme of Administration. It is undisputed that the committee of management of the institution and the society is one and the same. According to the approved Scheme of Administration, the term of the committee of management is three years from the date of election and fresh election for constitution of the committee of management has to be held one month prior to expiry of the term of the old committee of management. However, six months' grace period has also been provided for the old committee to function, in case, the elections are not held within time, during which fresh election shall be held.
From the pleadings, it appears that the last undisputed election of the committee of management was held on 06.01.2002, wherein Shri Ram Achal Mishra was elected a Manager and his signature was duly attested by the District Inspector of Schools. Shri Ram Achal Mishra expired on 23.07.2004. Thereafter, the committee of management elected Shri Pankaj Kumar Mishra for the residual term of the committee of management, which was upto 05.01.2005. The signature of Shri Pankaj Kumar Mishra was attested by the District Inspector of Schools as Manager for the remaining term of the committee of management vide order dated 07.09.2004. The District Inspector of Schools specifically provided that term of the committee of management is upto 06.01.2005 and directed that the fresh election be held on or before 06.01.2005. When fresh elections were not held, District Inspector of Schools passed an order dated 20th January, 2005 directing single operation of the account of the institution. The said order was challenged by committee of management of the institution through Shri Pankaj Kumar Mishra, Manager by filing Writ Petition No. 7486 of 2005. A learned Single Judge vide judgment and order dated 07.07.2005 dismissed the writ petition holding that petitioners therein have no right to continue in the management of the institution subsequent to 05.07.2005, inasmuch as the grace period of six months expired and under Clause 7 of the approved Scheme of Administration, since the outgoing committee of management did not hold the fresh elections within six months of the expiry of the term as provided in the said Clause, it has no right to hold the elections after expiry of the period of six months. The learned Single Judge also issued following direction for holding fresh elections for the committee of management of the institution.
"However, in the facts and circumstances of the case, it is provided that the Regional Joint Director of Education, Basti Region, Basti shall appoint an independent election officer for getting the fresh elections of the committee of management held. The election officer so appointed shall publish a tentative list of members of General Body entitled to participate in the elections and shall invite objections. Objections, if any, shall be decided by means of a reasoned speaking order. The electoral college so finalized shall be the basis for holding the elections of the committee of management. The elections shall be held strictly in accordance with the approved Scheme of Administration. The aforesaid exercise may be completed within two months from the date a certified copy of this order is filed before the Regional Joint Director of Education."
In compliance of the aforesaid direction, Joint Director of Education appointed District Inspector of Schools as election officer, who proceeded to decide the electoral college after publishing the tentative list of members of the General Body and inviting objections. The election officer/ District Inspector of Schools after considering the objections vide order dated 01.04.2011 finalised the electoral college. It is to be taken note of that the District Inspector of Schools held that Shri Vindhyachal Mishra, respondent no. 5 herein was not a member of the General Body and, accordingly, list of 65 members submitted by him was disapproved. Similarly, District Inspector of Schools also found that respondent no. 6, Shri Vinay Shanker Mishra was also not a member of the General Body, as such, list of the members of the General Body filed by him was disapproved. The order of the District Inspector of Schools dated 01.04.2011 was challenged by respondent no. 5 herein, Vindhyachal Mishra by filing Writ Petition No. 22783 of 2011, which came to be dismissed vide order dated 20.04.2011. After finalisation of the electoral college in the aforesaid manner, an observer was appointed, under whose supervision, election was held on 24.04.2011, wherein Shri Pankaj Kumar Mishra was elected as Manager and Shri Babu Lal Gupta was elected as Vice President. The signature of Shri Pankaj Kumar Mishra was attested by the District Inspector of Schools vide order dated 27.04.2011.
The proceedings of election dated 24.04.2011 and the order dated 27.04.2011 attesting the signature of Shri Pankaj Kumar Mishra as Manager of the institution, were challenged by respondent no. 6, Vinay Shanker Mishra by filing Writ Petition No. 26516 of 2011. The petition was opposed by the present appellants alleging that petitioner therein (respondent no. 6 herein) was not even a member of the General Body and his claim of some election of 1998 were found to be fraudulent and his writ petition was also dismissed, therefore, his objection to the election and attestation of the signature of Shri Pankaj Kumar Mishra is meaningless. The learned Single Judge vide order dated 06.05.2011 disposed of the writ petition by making following observation.
"Be it so, both the parties will approach the Regional Committee which may first consider the locus of the petitioner to challenge the election and thereafter if it is found that he has locus, it may consider the objections raised by him.
Subject to the aforesaid, writ petition is finally disposed of."
The order passed by the learned Single Judge was put to challenge in Special Appeal No. 892 of 2011 filed by Shri Vinay Shanker Mishra, respondent no. 6 herein. A Division Bench vide judgment and order dated 65.05.2011 affirmed the judgment of the learned Single Judge and disposed of the appeal by making following observation.
"The learned Single Judge has directed the parties to approach the Regional Level Committee, which in our considered opinion is correct approach. We, therefore, do not find any legal infirmity in the order passed by the learned Single Judge. However, it is made clear that after the appellant files their objections before the Regional Level Committee the same shall be decided in accordance with law as per the direction given by the learned Single Judge by the order dated 6.5.2011 within a period of six weeks from the date it is filed.
The appeal stands disposed of with the aforesaid observation.
It is made clear that the Court has not adjudicated the claim on merits. "
In view of the aforesaid order, respondent no. 6, Shri Vinay Shanker Mishra filed his objections before the Regional Level Committee and a notice dated 25.05.2011 was issued to the concerned parties. Shri Pankaj Kumar Mishra also filed his objections in respect of Shri Vinay Shanker Mishra alleging that he is not a member of the General Body. Regional Level Committee vide order dated 25.03.2013 disapproved the election dated 24.04.2011 and set aside the order attesting the signature of Shri Pankaj Kumar Mishra as Manager. The order was challenged by the committee of management by filing Writ Petition No. 19925 of 2013. The learned Single Judge vide judgment and order dated 17.04.2013 allowed the writ petition and remanded the matter back for reconsideration before the Regional Level Committee by making following observation.
"This Court may even otherwise record that from the report, which has been submitted by the Joint Director of Education today before the Court, it is apparent that the District Inspector of Schools had responded to the said proceedings vide his report dated 24.01.2013, which is much after the last date of hearing in the matter. This report has specifically been relied upon by the Regional Level Committee while passing the order impugned.
In my opinion reliance on the said report, which has been received after close of the hearing, vitiates the order, inasmuch as the petitioner was entitled to a copy of the report and an opportunity to file a reply thereto, before it could be acted upon/relied upon by the Regional Level Committee. Since such procedure known to law has not been followed, the order is rendered bad being in violation of the principle of natural justice.
Accordingly, the order impugned passed by the Regional Level Committee is hereby set aside. The matter is restored before the Regional Level Committee.
Now since the report of the District Inspector of Schools is known to the parties, the Regional Level Committee is directed to re-hear the matter. Petitioners are at liberty to file their reply to the report. The Regional Level Committee shall decide the matter afresh by means of a reasoned order, preferably within four weeks from the date a certified copy of this order is filed before it. All other issues are left open to be agitated before the Regional Level Committee by the parties in the shape of written submissions and the contentions so raised shall be examined by the Regional Level Committee.
The petitioner shall appear before the Regional Joint Director of Education along with certified copy of this order on 29th April, 2013. Date for hearing in the matter shall be fixed in his presence.
Writ petition is allowed subject to the observations made."
Thereafter, Joint Director of Education passed an order dated 09.05.2013 recalling the earlier order dated 25.03.2013 and restoring the position as it stood then, which in effect, recognised Shri Pankaj Kumar Mishra as Manager of the institution. However, before the Regional Level Committee could take a decision in the matter as directed by this Court vide order dated 17.04.2013, Shri Pankaj Kumar Mishra died on 26.07.2013. On his death, the committee of management passed a resolution dated 11.08.2013 electing petitioner-appellant no. 2 herein as Manager for the residual term of the committee of management. The papers were forwarded to District Inspector of Schools, who vide order dated 04.09.2013 attested the signature of petitioner-appellant no. 2 as Manager of the institution. The said order dated 04.09.2013 was challenged by Shri Vinay Shanker Mishra, respondent no. 6 herein by filing Writ Petition No. 51085 of 2013 and 52802 of 2013. On an objection being raised regarding locus of respondent no. 6 herein who filed the said writ petitions, a learned Single Judge vide order dated 19.09.2013 and 30.09.2013, dismissed the two petitions with liberty to file a fresh petition on behalf of persons affected by the impugned order. Since the term of the committee of management was to expire, a resolution dated 08.01.2014 was passed to take steps for holding fresh elections of the committee of management.
On the request made by the committee of management dated 22.01.2014, the District Inspector of Schools passed an order dated 28.01.2014 requiring the petitioner-appellant to produce a certified copy of the list of members of General Body registered in the office of the Assistant Registrar on the ground that the dispute with regard to the office bearers of the committee of management is pending and refused to permit the petitioner-appellant to hold the election. The petitioner-appellant challenged the said order by filing Writ Petition No. 9210 of 2014. A learned Single Judge vide order dated order dated 13.02.2014 stayed the effect and operation of the order dated 28.01.2014. Thereafter, the District Inspector of Schools, Basti vide order dated 22.02.2014 appointed an observer to supervise the election to be held on 23.03.2014. In the said election, petitioner-appellant no. 2 herein was elected as Manager and one Ram Babu Gupta was elected as Vice President. The papers pertaining to the said election were forwarded to the District Inspector of Schools vide letter dated 25.02.2014. District Inspector of Schools vide order dated 12.03.2014 approved the election and attested the signature of the petitioner-appellant no. 2 as Manager of the institution.
The aforesaid order was questioned by respondent no. 5 herein, Vinchyachal Mishra by preferring Writ Petition No. 18848 of 2014. The writ petition was disposed of vide order dated 04.04.2014 by making following observation.
"Therefore, in the interest of justice, a direction is issued to the Joint Director of Education to send the matter to the Regional Level Committee. The Joint Director of Education shall submit the objections as well as fresh representation, if any, within two weeks from the date of communication of this order before the Regional Level Committee, which shall decide the dispute and pass appropriate order after hearing the concerned parties as early as possible preferably within a period of three months from the date of communication of this order from the office of the Joint Director of Education. The parties are at liberty to raise all the available points including the locus of the petitioners which shall be dealt with by the Regional Level Committee by a reasoned order. In the meantime, having regard to the facts and circumstances of the case and in the interest of justice, it is provided that the Committee of Management shall not withdraw any amount more than Rs.5000/- without permission of the District Inspector of Schools.
With the above observations/directions, the writ petition is disposed of.
No order as to costs."
Special Appeal No. 425 of 2014 filed by respondent no. 5 herein was also disposed of vide order dated 28.04.2014 by making following observation.
"It is open to the appellant to raise all the objections before the Regional Level Committee, including the objection as regards the validity of the election held on 23th February, 2014. It is expected that appropriate order shall be passed by the committee in terms of the order of this court.
With these observation, the special appeal stands disposed of. "
In compliance of the aforesaid orders passed by learned Single Judge and Division Bench, Joint Director of Education, Basti Region, Basti issued a notice, in response whereof, the petitioner-appellants filed their reply by raising a preliminary objection in respect of locus of respondent no. 5 and 6 herein, namely, Shri Vindhyachal Mishra and Shri Vinay Shanker Mishra. Regional Level Committee vide order dated 15.07.2014 disapproved the election held on 23.02.2014 and directed the authorised controller to hold fresh election in accordance with the Scheme of Administration from amongst the approved list of members of General Body.
The order was challenged by the petitioner-appellant by filing Writ Petition No. 37996 of 2014. A learned Single Judge vide order dated 24.07.2014 allowed the writ petition in the following terms.
"In view of the discussion made above, the impugned order cannot be sustained. The writ petition is, therefore, allowed. The order dated 15.07.2014 (Annexure 1 to the writ petition) is set aside. The matter is remanded back to the Regional Level Committee to decide the matter, afresh, in accordance with law, preferably, within a period of six weeks from the date of production of a certified copy of this order after giving opportunity of hearing to the parties concerned. "
In the meantime, respondent no. 6, Shri Vinay Kumar Mishra made an application for being impleaded in Writ Petition No. 9210 of 2014 filed by the petitioner-appellant challenging the order of the District Inspector of Schools dated 28.01.2014 refusing to appoint an observer. The learned Single Judge vide order dated 07.10.2014 noticing that fresh elections have already been held and signature of the elected members has also been attested and the dispute is pending before Regional Level Committee, dismissed the writ petition has having become infructuous. However, misinterpreting the order dated 07.10.2014 passed by this Court, District Inspector of Schools passed another order dated 31.10.2014 recalling the order dated 12.03.2014 attesting the signature of appellant no. 2 as Manager of the institution.
Aggrieved, the petitioner-appellant filed Writ Petition No. 61976 of 2014. A learned Single Judge vide order dated 19.11.2014 stayed the effect and operation of the order dated 31.10.2014 of the District Inspector of Schools leaving it open to Regional Level Committee to proceed to decide the dispute in terms of the directions issued by this Court vide order dated 24.07.2014 passed on Writ Petition No. 37996 of 2014. Order passed by learned Single Judge was challenged by respondent no. 6 by filing Special Appeal No. 1176 of 2014, which was dismissed as not maintainable vide judgment and order dated 13.01.2015. In the meantime, Regional Level Committee proceeded to consider the dispute in compliance of the judgment and order passed by this Court and notices were issued to the parties fixing 28.08.2014 for filing objections. Regional Level Committee vide order dated 03.07.2015 disapproved the elections held on 23.02.2014 and appointed Principal, Government Inter College, Basti to function as authorised controller with the direction to hold the fresh election for constitution of committee of management within one month after obtaining list of valid members of the General Body from Sub Divisional Magistrate, Harraiya/Assistrant Registar, Chits Funds Society, Gorakhpur. Aggrieved by the said order, the petitioner filed instant writ petition, out of which this Special Appeal arises, which was disposed of by learned Single Judge by making following observation.
"Considering the long standing disputes, in my view, it would be appropriate that the membership of the Society which constitutes the society as well as of the Committee of Management be decided once for all by the Assistant Registrar, Firms, Societies and Chits, Gorakhpur and the same be considered taking into account the last undisputed election dated 06.01.2002 and the list of members upon which said election was held. If any further members of the society has been nominated by the validly constituted Committee of Management, their induction may also be looked into and a tentative list be prepared for inviting objections from all concerned and thereafter the final list be published. The said action be taken by the Assistant Registrar, Firms, Societies and Chits, Gorakhpur within a period of two months from the date a certified copy of this order is produced before it. It is further directed that once the list is finalized the same be forwarded to the District Inspector of Schools for conducting election of the Committee of Management of the institution.
Till then authorized controller as appointed shall continue.
With the aforesaid observations, the writ petition is disposed of.
It is cautioned that the Assistant Registrar while deciding the dispute shall be uninfluenced by the order impugned dated 03.07.2015."
It is submitted that specific ground raised in the writ petition with regard to the fact that at the time of hearing, Shri Rajesh Kumar Arya, District Inspector of Schools, Basti was member of the Regional Level Committee, however, the decision, which was delivered after 9 months of the hearing, contains the signature of Shiv Bahadur Singh, incharge DIOS, who did not hear the matter, had not at all been considered by the learned Single Judge. It is further submitted that the decision is vitiated in law, inasmuch as at the time of hearing, there was some other member while the decision has been delivered by some other person, who was not there at the time of hearing. It is also submitted that respondent no. 3, Joint Director of Education, Basti, who was the President of the Regional Level Committee was transferred vide order dated 30th June, 2015 from the said post to the post of Principal, College of Teachers Education, Allahabad. The transfer order dated 30.06.2015 further records that all the officers under transfer are relieved immediately with the direction to take charge at the transferred place without waiting for the reliever, still respondent no. 2, Joint Director of Education passed impugned order dated 03.07.2015 without jurisdiction and this ground has also not been considered by the learned Single Judge.
When the case was heard on 14.09.2015, following order was passed.
"After the matter was heard, when a query was made by the Court from Shri Uma Kant, learned counsel for the respondent no. 6 that who was the District Inspector of Schools functioning on 29.09.2014 when the hearing took place before the Regional Level Committee and who has signed the order delivered on 03.07.2015, he sought 24 hours' time to verify the fact in this regard.
Prayer is allowed.
Put up as fresh on 16th September, 2015."
A supplementary affidavit was filed on behalf of respondent no. 6 at the time of hearing on 16.09.2015. It has been stated in paragraph 3 of the supplementary affidavit as under.
"3. That with due respect it is submitted that on 29.09.2014 following members of regional level committee were present and heard the matter.
(I) Rajesh Kumar Arya, District Inspector of Schools, Basti.
(II) Smt. Sheela Verma, Joint Director of Education, Basti.
(III) Sri Anil Bhushan, Deputy Director of Education, Basti Region, Basti."
Again in paragraphs 10 and 11 of the supplementary affidavit, it is stated as under.
"10. That however members of regional level committee who heard the matter on 29.09.2014 and had dictated the order, one of its member i.e. District Inspector of Schools, Basti Rajesh Kumar Arya could not sign the order on 03.07.2015 as he had to go suddenly to Lucknow P.G.I. due to serious illness of his son and had taken leave from 01.07.2015 to 05.07.2015 by handing over his charge to Associate District Inspector of Schools (Principal G.I.C., Basti).
11. That consequently judgment and order was signed by Assodiate District Inspector of Schools (Principal G.I.C.) Shiva Bahadur Singh on 03.07.2015 alongwith Joint Director Smt. Sheel Verma and Deputy Director of Education Sri Anil Bhushan."
The contents of paragraph 10 of the supplementary affidavit are sworn on the basis of personal knowledge by Shri Vinay Shanker Mishra, respondent no. 6.
This is a matter of surprise that how he attained personal knowledge of the fact that judgment had been dictated. Admittedly, the judgment was not dictated during the course of proceedings, rather as alleged, hearing took place on 29.09.2014, whereas the order has been delivered on 03.07.2015.
The Regional Level Committee constituted under the Government Order dated 19.12.2000 supplements the provisions of Section 16-A (7) of the Act, 1921. A five Judges Bench of this Court in the case of Committee of Management & Anr. Vs. Regional Deputy Director of Education, Agra & Ors., 2004 (57) ALR 405 while considering provisions of Section 16-A (7) held that Regional Deputy Director of Education while deciding the dispute under Section 16-A (7) of U.P. Intermediate Education Act, 1921, exercises quasi judicial power and not purely administrative powers. The Government Order dated 19.12.2000 and 20.10.2008 making a provision for three members committee known as Regional Level Committee headed by Joint Director of Education to assist the authority to take a decision required under Section 16-A (7) of the Act, also exercises quasi judicial powers.
A Division Bench of this court in the case of Committee of Management, Aley Girls Inter College, Amroha, J.P. Nagar & Anr. Vs. State of U.P. & Ors., 2011 (6) AWC 6510, has held that Government Order dated 19.12.2000 as well as 20.10.2008 have to be interpreted in a manner so that it may effectuate the statutory scheme as laid down in Section 16-A(7). The two Government Orders cannot be read in a manner to dilute the statutory scheme.
In view of the fact that the function of the Regional Level Committee are quasi judicial in nature, hearing by a different member of the Committee and delivery of order under the signatures of a different member, who was not there at the time of hearing, will vitiate the entire proceedings.
One who hears, must decide, is well accepted principle. The Hon'ble Apex Court in the case of Rasid Javed Vs. State of U.P., AIR 2010 SC 2275, has held that
"A person who hears must decide and that divided responsibility is destructive of the concept of judicial hearing is too fundamental a proposition to be doubted."
Same view has been reiterated by the Hon'ble Apex Court in the case of Automotive Tyre Manufacturers Association Vs. Designated Authority, (2011) 2 SCC 258. In the said case, the designated authority under the relevant statute passed the final order on the material collected by his predecessor-in-office, who had also accorded hearing to the parties concerned. It was held that the order stood vitiated as it offended the basic principles of natural justice.
In a recent decision in the case of Union of India Vs. Shiv Raj, (2014) 6 SCC 564, while considering the provisions of Section 5-A of Land Acquisition Act, 1894, it has been held in paragraph 20 as under.
"----- The very person/officer, who accords hearing to the objector must also submit the report/take decision on the objection and in case his successor decided the case without giving a fresh hearing, the order would stand vitiated having been passed in violation of principles of natural justice."
Shri Uma Kant, learned counsel for the respondent no. 6 tried to wriggle out of the situation by making reference to Order XX Rule 2 C.P.C., which reads as under.
"A Judge shall pronounce a judgment written, but not pronounce by his predecessor."
This argument has been advanced only to be rejected. Firstly, the provisions of the Civil Procedure Code are not attracted to the proceedings before the Regional Level committee and secondly, even if the principle can be said to be attracted, there is nothing on record to indicate that order of the Regional Level Committee was written by the District Inspector of Schools, but on account of his absence, it was signed by the Associate District Inspector of Schools at the time of delivery, as he was holding charge of the District Inspector of Schools.
Apart from above, there are other circumstances. The alleged hearing before the Regional Level Committee took place on 29.09.2014. It was not delivered until 3rd July, 2015 when the Joint Director of Education, Smt. Sheela Verma was already transferred from the said post vide order dated 30th June, 2015 and relieved immediately.
For the aforesaid facts and reasons, the order dated 03.07.2015 passed by Regional Level Committee stands vitiated. Though a specific ground in this regard was raised before the learned Single Judge in the writ petition, but he has not adverted thereto. The decision dated 03.07.2015 cannot be said to be a decision rendered by Regional Level Committee in the eyes of law as directed by learned Single Judge of this Court vide order dated 24.07.2014, inter se, between the parties on Writ Petition No. 37996 of 2014. The elections of the committee of management, which are in jeopardy, were held on 23.02.2014. Admittedly, the term is for three years, i.e., till 2017. The validity of the aforesaid elections needs to be authoritatively adjudicated in accordance with law by the Regional Level Committee in view of the provisions of Section 16-A (7) read with Government Order dated 19.12.2000 and 20.10.2008.
In view of the discussions made above, the order dated 03.07.2015 passed by Regional Level Committee as well as order dated 17.08.2015 passed by learned Single Judge on Writ Petition No. 38773 of 2015, are not liable to be sustained and are hereby set aside.
Special appeal stands allowed.
The matter is remitted back to the Regional Level Committee, which shall decide the same in accordance with law, preferably within a period of two months from the date of production of a certified copy of this order after giving opportunity of hearing to all the parties concerned.
October 16th, 2015
VKS
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