Ahmednagar Municipal ... vs Machindra Baburao Darkunde And ...
2016 Latest Caselaw 5235 Bom

*1* 17.wp.3698.14

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

WRIT PETITION NO. 3698 OF 2014

Ahmednagar Municipal Corporation, Ahmednagar.

Through it's Commissioner.

...PETITIONER

-VERSUS-

1 Machindra s/o Baburao Darkunde,

Age : 58 years, Occupation : Service.

2 Patilba Ravji Khemnar,

Age : 47 years, Occupation : Service.

3 Sau.Vijaya Laxmikant Rasal, Age : 64 years, Occupation : Service.

    4       Ashok Baban Kotkar.
    



            Deceased through L.Rs.
    4A)     Smt.Savita Ashok Kotkar,

Age : 42 years, Occupation : Nil.

5 Bajirao Yeshwant Yewale, Age : 40 years, Occupation : Service.

6 Machindra Murlidhar Hulge, Age : 50 years, Occupation : Service.

7 Ankush Rakhamaji Kotkar, Age : 42 years, Occupation : Service.

8 Babu Kisan Rahinj, Age : 40 years, Occupation : Service.

9 Santosh Nanasaheb Londhe, Age : 42 years, Occupation : Service.

                                                *2*                          17.wp.3698.14




    10     Rakhamaji Nanabhau Satpute,




                                                                             

Age : 34 years, Occupation : Service.

11 Sukhadev Sajan Pund,

Age : 35 years, Occupation : Service.

12 Raju Bhimaji Medhe, Age : 47 years, Occupation : Service.

13 Bharat Arjun Kakde, Age : 36 years, Occupation : Service.

14 Kachru Bahiru Kotkar, Age : 40 years, Occupation : Service.

15 Ashok Paraji Karle, Age : 45 years, Occupation : Service.

16 Abasaheb Sadashiv Holkar, Age : 35 years, Occupation : Service.

17 Mohan Bhikaji Kale,

Age : 39 years, Occupation : Service.

18 Rajendra Suryabhan Pund, Age : 30 years, Occupation : Service.

19 Babasaheb Trimbak Rashinkar, Age : 37 years, Occupation : Service.

20 Prashant Raghunath Londhe, Age : 35 years, Occupation : Service.

21 Sambhaji Dattatraya Karle, Age : 30 years, Occupation : Service.

22 Bhimrao Shripati Kangude, Age : 40 years, Occupation : Service.

23 Sunil Dadabhau Satpute, Age : 40 years, Occupation : Service.

                                                *3*                          17.wp.3698.14


    24     Gorakh Bajirao Gaikwad,

Age : 28 years, Occupation : Service.

25 Appasaheb Ashok Beldar, Age : 36 years, Occupation : Service.

26 Rahul Baban Kotkar, Age : 36 years, Occupation : Service.

27 Babasaheb Bhausaheb Haral, Age : 36 years, Occupation : Service.

28 Prafullkumar Raghunath Londhe,

Age : 32 years, Occupation : Service.

29 Anil Raosaheb Zade,

Age : 40 years, Occupation : Service.

30 Nitin Ratan Wardal, Age : 37 years, Occupation : Service.

31 Keshav Maruti Haral, Age : 35 years, Occupation : Service.

32 Sudam Parvati Kasar, Age : 45 years, Occupation : Service.

33 Vandana Maruti Bhonde,

Age : 32 years, Occupation : Service.

34 Nanda Shankar Kotkar, Age : 35 years, Occupation : Service.

35 Suvarna Sahebrao Kale, Age : 39 years, Occupation : Service.

36 Sindu Suresh Garudkar, Age : 35 years, Occupation : Service.

37 Pramila Sukhadev Baraskar, Age : 32 years, Occupation : Service.

    38     Balasaheb Machindra Baraskar,





                                                *4*                          17.wp.3698.14

Age : 37 years, Occupation : Service.

39 Dilip Chaganrao Shejul, Age : 55 years, Occupation : Service.

40 Balasaheb Laxman Karale, Age : 37 years, Occupation : Service.

41 Manohar Prabhakar Deshpande,

Age : 52 years, Occupation : Service.

42 Radhabai Jeejaram Gagdale, Age : 35 years, Occupation : Service.

43 Sangita Jagannath Gund, Age : 32 years, Occupation : Service.

44 Sandya Ramchandra Shahapurkar,

Age : 49 years, Occupation : Service.

45 Rohini Suresh Chavan, Age : 34 years, Occupation : Service.

46 Sharad Waman Lagad,

Age : 38 years, Occupation : Service.

47 Baban Shankar Satpute, Age : 32 years, Occupation : Service.

48 Jyoti Balasaheb Gund, Age : 37 years, Occupation : Service.

49 Asha Eknath Gavkhare,

Age : 36 years, Occupation : Service.

50 Sunita Tukaram Gawande, Age : 35 years, Occupation : Service.

51 Manisha Lalji Thombre, Age : 29 years, Occupation : Service.

52 Gorakh Dattatraya Kotkar, Age : 45 years, Occupation : Service.

                                                *5*                          17.wp.3698.14




    53     Sanjay Gangaram Londhe,




                                                                             

Age : 30 years, Occupation : Service.

54 Baban Nana Karande,

Age : 39 years, Occupation : Service.

55 Pustar Madhu Chavan, Age : 39 years, Occupation : Service.

56 Manoj Kashinath Kamble, Age : 45 years, Occupation : Service.

57 Sanjay Ambadas Rahinj, Age : 29 years, Occupation : Service.

58 Mininath Jamdev Kotkar, Age : 30 years, Occupation : Service.

59 Balu Laxman Shinde, Age : 50 years, Occupation : Service.

60 Ramdas Laxman Ware,

Age : 62 years, Occupation : Service.

61 Dattatraya Rambhau Tambe, deceased through L.Rs.

61-A) Smt.Tarabai Dattatraya Tambe, Age : 50 years, Occupation : Nil.

62 Rajaram Bapu Barathe, Age : 60 years, Occupation : Service.

63 Lahanu Munjabapu Kotkar, Age : 42 years, Occupation : Service.

64 Vasant Kisan Dhotre, Age : 43 years, Occupation : Service.

65 Gorakh Bhau Dalvi, Age : 42 years, Occupation : Service.

                                                *6*                          17.wp.3698.14


    66     Bapu Dagadu Matkar,

Age : 40 years, Occupation : Service.

67 Dnyandev Shripati Yewale, Age : 47 years, Occupation : Service.

68 Bhimrao Asaram Kotkar, Age : 42 years, Occupation : Service.

69 Popat Gangaram Hulge, Age : 42 years, Occupation : Service.

70 Popat Keru Sarode,

Age : 40 years, Occupation : Service.

Babasaheb Gopinath Matkar, Age : 40 years, Occupation : Service.

72 Thaksen Chabu Kotkar, Age : 40 years, Occupation : Service.

73 Ramdas Vitthal Kotkar, Age : 40 years, Occupation : Service.

74 Ashok Govind Lotke, Age : 37 years, Occupation : Service.

75 Ramesh Nabaji Pawar,

deceased through L.Rs.

75-A) Smt.Anita Ramesh Pawar, Age : 52 years, Occupation : Nil.

76 Bapu Bhau Dalvi,

Age : 42 years, Occupation : Service.

77 Raghunath Genu Thube, Age : 41 years, Occupation : Service.

78 Ramesh Tukaram Rahinj, Age : 39 years, Occupation : Service.

    79     Vilas Mahadev Satpute,
            deceased through L.Rs.





                                                *7*                          17.wp.3698.14

79-A) Smt.Shobha Vilas Satpute, Age : 37 years, Occupation : Nil.

80 Babasaheb Arjun Arun, Age : 39 years, Occupation : Service.

81 Santosh Chabu Kotkar, Age : 36 years, Occupation : Service.

82 Pandurang Tatyaba Kakde, Age : 52 years, Occupation : Service.

83 Ramesh Radhakisan Karale,

Age : 34 years, Occupation : Service.

84 Ananda Sakharam Phalke,

Age : 45 years, Occupation : Service.

85 Sitaram Bajirao Kotkar, Age : 32 years, Occupation : Service.

86 Ravindra Tatyasaheb Kotkar, Age : 32 years, Occupation : Service.

87 Ganesh Laxman Jadhav, Age : 30 years, Occupation : Service.

88 Janardhan Rajaram Barathe,

Age : 45 years, Occupation : Service.

89 Chandrakant Namdev Dhotre, Age : 37 years, Occupation : Service.

90 Dattatraya Mungaji Kotkar, Age : 32 years, Occupation : Service.

91 Hiralal Pandurang Jadhav, Age : 32 years, Occupation : Service.

92 Jagdish Bansi Khedkar, deceased through L.Rs.

92-A) Smt.Mangal Gagdish Khedkar, Age : 42 years, Occupation : Nil.

                                                 *8*                          17.wp.3698.14




    93      Vijay Eknath Karale,




                                                                              

Age : 30 years, Occupation : Service.

94 Vijay Bhausaheb Satpute,

Age : 28 years, Occupation : Service.

95 Rajendra Ramesh Ingale, Age : 27 years, Occupation : Service.

96 Gajanan Limbaji Kotkar, Age : 40 years, Occupation : Service.

97 Dyaneshwar Limbhaji Kotkar, Age : 30 years, Occupation : Service.

98 Santosh Suryabhan Jaikar, Age : 30 years, Occupation : Service.

99 Raju @ Machindra Popat Kandekar, Age : 44 years, Occupation : Service.

100 Santosh Chabu Kamble,

Age : 40 years, Occupation : Service.

101 Sukhadev Sahebrao Arun, Age : 40 years, Occupation : Service.

102 Babasaheb Gangadhar Kotkar, Age : 35 years, Occupation : Service.

103 Dharmnath Baburao Walke, Age : 34 years, Occupation : Service.

104 Narendra Namdev Lagad, Age : 32 years, Occupation : Service.

105 Dattatraya Bansi Akolkar, Age : 32 years, Occupation : Service.

106 Raghunath Bhausaheb Maharpude, Age : 30 years, Occupation : Service.

                                                 *9*                          17.wp.3698.14


    107     Santosh Natha Londhe,

Age : 29 years, Occupation : Service.

108 Suresh Devram Dhamni, Age : 28 years, Occupation : Service.

109 Dnyandev Haribhau Kakde, Age : 42 years, Occupation : Service.

110 Machindra Pandurang Dhotre, Age : 34 years, Occupation : Service.

111 Mahadev Anashabapu Kotkar,

Age : 42 years, Occupation : Service.

112 Ashok Mohan Karale,

Age : 47 years, Occupation : Service.

113 Devram Dattatraya Salve, Age : 42 years, Occupation : Service.

114 Kailash Mahadev Satpute, Age : 37 years, Occupation : Service.

115 Amol Dhondiram Kamble, Age : 30 years, Occupation : Service.

116 Gorakh Vitthal Garudkar,

Age : 32 years, Occupation : Service.

117 Jaising Prataprao Sathe, Age : 32 years, Occupation : Service.

118 Dhondiram Patilba Kute, Age : 40 years, Occupation : Service.

119 Subhash Laxman Dhage, Age : 32 years, Occupation : Service.

120 Babasaheb Vithal Gund, Age : 34 years, Occupation : Service.

    121     Dattatraya Pandurang Kharade,





                                                   *10*                          17.wp.3698.14

Age : 38 years, Occupation : Service.

122 Bapusaheb Ramdas Sathe, Age : 32 years, Occupation : Service.

123 Thabubai Mariba Pancharne, deceased through L.Rs.

    123-A            Suman Ashok Pacharne




                                                        
                     Age : 41 years, Occ : Nil.

    124     Heerabai Ambadas Bulakhe,

Age : 55 years, Occupation : Service.

    125     Chandrakant Ranu Borge 
            deceased through L.Rs.

    125-A            Surekha Jalindar Borge
                                  
                     Age : 37 years, Occ : Nil.

    126     Gaubai Kundlik Borge,

Age : Major, Occupation : Service.

127 Jamunabai Mohan Narwal,

Age : 42 years, Occupation : Service.

128 Saraswati Ashruba Pandagale, Age : 52 years, Occupation : Service.

129 Meera Sudam Sulakhe, Age : 57 years, Occupation : Service.

130 Dilip Tukaram Shinde,

Age : 55 years, Occupation : Service.

131 Hanumanta Banaji Bulakhe, Age : 53 years, Occupation : Service.

132 Kausabai Yeshwant Pacharne, Age : Major, Occupation : Service.

133 Pandurang Kundlik Kotkar, Age : 42 years, Occupation : Service.

                                                   *11*                          17.wp.3698.14




    134     Dasu Piraji Kamble,




                                                                                 
            deceased through L.Rs.

    134-A            Manda Dasu Kamble,




                                                         
                     Age : 42 years, Occ : Nil.

    135     Kanthabai Baburao Kamble,

Age : 62 years, Occupation : Service.

136 Bhau Pulaji Kamble, Age : 48 years, Occupation : Service.

137 Bhagubai Balu Lokhande, Age : 42 years, Occupation : Service.

138 Ashabai Dadu Shinde, Age : 55 years, Occupation : Service.

139 Chayabai Radhu Shinde, Age : 47 years, Occupation : Service.

140 Radhakisan Bansi Kotkar,

Age : 45 years, Occupation : Service.

141 Vasant Kashinath Kamble, Age : 41 years, Occupation : Service.

142 Kamal Narayan Jadhav, Age : 42 years, Occupation : Service.

143 Shantabai Raju Kamble, Age : 42 years, Occupation : Service.

144 Harubai Shaurao Shinde, Age : 43 years, Occupation : Service.

145 Malan Rohidas Shinde, Age : 55 years, Occupation : Service.

146 Sudam Appa Satpute, Age : 40 years, Occupation : Service.

                                                   *12*                          17.wp.3698.14


    147     Murlidhar Umaji Hulge,

Age : 55 years, Occupation : Service.

148 Janabai Sham Kamble, Age : 49 years, Occupation : Service.

149 Ranjana Yeshwant Kamble, Age : 47 years, Occupation : Service.

150 Manda Kachru Pancharne, Age : 34 years, Occupation : Service.

151 Saraswati Pandurang Kamble,

Age : 57 years, Occupation : Service.

152 Rakhamabai Madhu Chavan,

Age : 52 years, Occupation : Service.

153 Jalindar Chandrakant Borge, Age : 38 years, Occupation : Service.

154 Vithal Dadabhau Satpute, deceased through L.Rs.

154-A Pusha Vithal Satpute, Age : 43 years, Occ : Nil.

155 Balu Nana Borge,

Age : 36 years, Occupation : Service.

156 Sushila Sampat Dhiwar, Age : 52 years, Occupation : Service.

157 Vithal Shripat Yewale, Age : 58 years, Occupation : Service.

158 Gangubai Namdev Japkar, Age : 47 years, Occupation : Service.

159 Sharda Nandu Lingade, Age : 42 years, Occupation : Service.

    160     Heerabai Vishnu Salve,





                                                 *13*                          17.wp.3698.14

Age : 41 years, Occupation : Service.

161 Ashok Suryabhan Gund, Age : 40 years, Occupation : Service.

162 Sukhadev Tillu Bhingardive, Age : 41 years, Occupation : Service.

163 Babasaheb Pandurang Jadhav,

Age : 37 years, Occupation : Service.

164 Tukaram Abaji Kotkar, Age : 38 years, Occupation : Service.

165 Sanjay Shridhar Mondhave,

Age : 36 years, Occupation : Service.

166 Ramesh Tatyasaheb Kotkar,

Age : 30 years, Occupation : Service.

167 Usha Ashok Pacharne, Age : 42 years, Occupation : Service.

168 Chandrakala Balasaheb Rokhade,

Age : 43 years, Occupation : Service.

169 Suman Dattatraya Dhumal, Age : 45 years, Occupation : Service.

170 Prakash Subhash Kamble, Age : 41 years, Occupation : Service.

171 Manda Ramesh Wankhede,

Age : 43 years, Occupation : Service.

172 Upan Pustar Chavan, Age : 33 years, Occupation : Service.

173 Vijay Trimbak Kotkar, Age : 32 years, Occupation : Service.

174 Mangal Gochya Chavan, Age : 43 years, Occupation : Service.

                                                   *14*                          17.wp.3698.14




    175     Sarjerao Shivaji Pawar,




                                                                                 

Age : 31 years, Occupation : Service.

176 Vishwanat Yeshwant Dhiwar,

Age : 55 years, Occupation : Service.

177 Kausar Vikshan Sarsar, Age : 35 years, Occupation : Service.

178 Arun Vithal Dhotre, Age : 30 years, Occupation : Service.

179 Digambar Bhima Dhotre, Age : 41 years, Occupation : Service.

180 Bharat Pandurang Kamble, Age : 31 years, Occupation : Service.

181 Shankar Awaji Kotkar, Age : Major, Occupation : Service.

182 Geeta Shivaji Kamble,

Age : 48 years, Occupation : Service.

183 Manda Vijay Kamble, Age : 42 years, Occupation : Service.

184 Santosh Shankar Londhe, Age : 42 years, Occupation : Service.

185 Balu Narayan Shinde, Age : 39 years, Occupation : Service.

186 Anita Subhash Kotkar, Age : 37 years, Occupation : Service.

187 Sanjay Pandharinath Shinde, Age : 35 years, Occupation : Service.

188 Machindra Bhimrao Gaikwad, Age : 33 years, Occupation : Service.

                                                  *15*                          17.wp.3698.14


    189     Tukaram Shripati Yewale,

Age : 57 years, Occupation : Service.

190 Eknath Bhausaheb Rohokale, deceased through L.Rs.

190-A Smt.Alka Eknath Rohokale, Age : 53 years, Occupation : Household.

191 Manda Arun Bulakhe, Age : 37 years, Occupation : Service.

192 Asha Santosh Londhe,

Age : 39 years, Occupation : Service.

193 Radhabai Anil Aher,

Age : 40 years, Occupation : Service.

194 Tarabai Arjun Shinde, Age : 31 years, Occupation : Service.

195 Nanda Pandharinath Wagharem, Age : 48 years, Occupation : Service.

196 Bebi Karbhari Kalamkar, Age : 52 years, Occupation : Service.

197 Muktabai Babasaheb Vidhate,

Age : 42 years, Occupation : Service.

198 Sunanda Raju Pardhe, Age : 33 years, Occupation : Service.

199 Istaru Sunil Chavan, Age : 38 years, Occupation : Service.

200 Prabhawai Dilip Raibhar, Age : 36 years, Occupation : Service.

201 Lata Bhimaji Kedare, Age : 32 years, Occupation : Service.

    202     Sangita Bansi Khedkar,





                                                         *16*                           17.wp.3698.14

Age : 39 years, Occupation : Service.

203 Madina Babu Shaikh, Age : 49 years, Occupation : Service.

204 Vijaya Sambhaji Gaikwad, Age : 42 years, Occupation : Service.

All R/o Kedgaon, Tq.Nagar,

District Ahmednagar.

205 The Director, Municipal Administration,

State Road Transport Office, 3rd Floor, Sir Pochkhanwala Road,

Worli, Mumbai-400025.

...RESPONDENTS

...

Advocate for Petitioner : Shri Bedre Vinayak Sudhakar.

Advocate for Respondent Nos.1 to 204 : Shri N.V.Gaware.

AGP for Respondent 205 : Shri P.N.Kutti.

...

CORAM: RAVINDRA V. GHUGE, J.

DATE :- 14th September, 2016

Oral Judgment :

1 Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

    2                  The  Petitioner   /  Municipal   Corporation   is   aggrieved  by   the 





                                                       *17*                           17.wp.3698.14

judgment dated 11.03.2013 delivered by the Industrial Court,

Ahmednagar by which Complaint (ULP) No.62/2005 has been partly

allowed and the Petitioner as well as Respondent No.205 have been

directed to extend monetary benefits of the fifth pay commission to

Respondent Nos.1 to 204/ employees with effect from 29.06.1999, but by

excluding those employees who had not completed 18 years of age.

3 Shri Bedre, learned Advocate for the Petitioner/ Municipal

Corporation, has seriously criticized the impugned judgment. He submits

that the reasons assigned by the Industrial Court in support of it's

conclusions are perverse and erroneous. The law applicable has not been

considered in proper perspective. The Government Resolution dated

19.05.2003 has not been properly considered. Illegal appointments of

many Respondents/ Employees have been overlooked by the Industrial

Court. Some of the Respondents/ Employees claimed to be in employment

prior to completing 18 years of age.

4 He further submits that considering the perversity in the

impugned judgment, same deserves to be quashed and set aside. He

further submits that the financial burden flowing from the fifth pay

commission recommendations is not to be shouldered by the Petitioner/

Municipal Corporation. He, therefore, submits that this petition be

*18* 17.wp.3698.14

allowed.

5 The learned AGP on behalf of Respondent No.205 has

supported the contentions of the Petitioner to the extent of purported

illegal appointments made by the Petitioner. Insofar as shouldering the

financial burden of making payments under the fifth pay commission

recommendations is concerned, the learned AGP strenuously submits that

it would be the lookout of the Petitioner/ Municipal Corporation.

6 Shri Gaware, learned Advocate appearing on behalf of

Respondents Nos.1 to 204 / Employees, submits that the issue as to

whether, appointments of the Respondents/ Employees are illegal or not,

is not to be gone into by this Court considering the fact that Respondent

No.205 had issued the Government Resolution dated 19.05.2003 by which

services of the Employees working with various Gram Panchayats and

Municipal Councils have been absorbed. He, therefore, submits that if any

appointment of any of the Respondents/ Employees was illegal, the

Director of Municipal Administration would not have passed the order

dated 19.05.2003 by which their services were absorbed with the

Petitioner. It presupposes that the legality of their appointments has been

scrutinized by the concerned Municipal Administration and once their

services have been absorbed, it is not open either for the Petitioner/

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Municipal Corporation or Respondent No.205 to allege that their

appointments were illegal.

7 Shri Gaware further submits that the order dated 19.05.2003

issued by Respondent No.205 specifically mandates in clause-7 that

benefits of the fifth pay commission would be payable to these

Respondents/ Employees from 29.06.1999. These Respondents/

Employees had filed the ULP complaint before the Industrial Court merely

seeking implementation of the direction of Respondent No.205.

8 I have considered the submissions of the learned Advocates as

have been recorded herein above.

9 There is no dispute that Respondent No.205 has issued the

order dated 19.05.2003 which applies to Respondent Nos.1 to 204/

Employees. Neither the Petitioner nor Respondent No.205 have

contradicted the applicability of the order dated 19.05.2003 to any of

these Respondents/ Employees. It is also set out in clause 7 of the said

order that those employees covered by the said order, would be entitled

for monetary benefits of the fifth pay commission from 29.06.1999.

    10              In   my  view,  it   was   incumbent   upon   Respondent   No.205   to 





                                                         *20*                           17.wp.3698.14

scrutinize each and every case of Respondent Nos.1 to 204 when it came

to their absorption in service of the Petitioner Corporation. Having so

done, it leads to a legal presumption that the Director of Municipal

Administration has found no illegality in the appointments of Respondent

Nos.1 to 204. The Industrial Court has arrived at this conclusion and has

found the absorption to be appropriate only on the ground that neither

the Petitioner nor Respondent No.205 indicated in any form whatsoever

that the Respondents/ employees or any of them are not covered by the

order dated 19.05.2003. Had this been pointed out, such cases could have

been excluded.

11 It cannot be ignored that the Industrial Court itself has

undertaken the exercise of scrutinizing the age of each of the original

Complainants. It has concluded that some of the original Complainants

had not completed 18 years of age when they were inducted in service of

the Gram Panchayat/ Municipal Council, as the case may be, prior to their

absorption with the Petitioner Municipal Corporation. In my view, the

Industrial Court has rightly held in clause 3 of the operative part of the

impugned order that those Complainants, who were not 18 years of age

on the date of joining duties, would be excluded from being granted

benefits of the fifth pay commission from 29.06.1999. None of such

excluded original Complainants have challenged this conclusion of the

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Industrial Court in this Court.

12 Considering the above, I do not find any perversity in the

impugned judgment of the Industrial Court dated 11.03.2013. As such,

this Writ Petition is dismissed. Rule is discharged.

13 Needless to state, it is in between the Petitioner/ Municipal

Corporation and Respondent No.205 to implement the impugned

judgment of the Industrial Court in accordance with the Rules and

procedure applicable. Considering that this Court had not stayed the

impugned judgment, it is expected that the Petitioner/ Municipal

Corporation and Respondent No.205 shall do the needful for

implementation of the impugned judgment as expeditiously as possible

and preferably within a period of EIGHT WEEKS from today, if not already

implemented.

    kps                                                             (RAVINDRA V. GHUGE, J.)