INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISSN 2582 – 6433)

VOLUME I ISSUE III (SEPTEMBER 2020)

Email – [email protected] Website – www.ijlra.com

56565656565651 www.ijlra.com Volume IIssue III|September 2020 ISSN: 2582-6433

DISCLAIMER

No part of this publication may be reproduced or copied in any form by any means without prior written permission of Managing Editor of IJLRA. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of IJLRA.

Though every effort has been made to ensure that the information in Volume I Issue III is accurate and appropriately cited/referenced, neither the Editorial Board nor IJLRA shall be held liable or responsible in any manner whatsever for any consequences for any action taken by anyone on the basis of information in the Journal.

Copyright © International Journal for Legal Research & Analysis

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EDITORIAL TEAM

EDITORS Ms. Ezhiloviya S.P. Nalsar Passout

Ms. Priya Singh West Bengal National University of Juridical Science

Mr. Ritesh Kumar Nalsar Passout

Mrs. Pooja Kothari Practicing Advocate

Dr. Shweta Dhand Assistant Professor

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A WORD FROM THE TEAM

IJLRA:(ISSN: 2582-6433) is proud to complete its Volume I Issue III. The current issue consists of articles, short notes, case comments, legislative comments and book reviews, contributed by advocates, academicians, researchers & students from all parts of the country. Each contribution has been thoroughly examined by our editorial team to provide a filtered and quality read.

The fact that law as a subject is dynamic and ever evolving makes it imperative for lawyers, academicians, researchers, and students to stay abreast of recent developments. The same thought process has led us to develop a dedication towards providing all the contributors with a platform to express their original ideas on contemporary issues. With the same endeavour to present view on latest legal developments within and outside country we are successful in presenting diverse selection of stimulating articles.

We strive hard to stick to the core of the Journal's principles, which includes diversity and open discussion from all aspects of law while maintaining highest standards of professional integrity.

The Issue is a culmination of the efforts of several people who must be rightly acknowledged. We would like to place on record our sincere gratitude to all our contributors for their valuable work. We would also like to thank all the members of Editorial Board for their efforts in shortlisting and editing the papers to ensure that the ideas of authors are being expressed in the best possible manner; and finally the members of our technical support team for making this issue reach all our readers by way of an open access system.

We sincerely hope that the present issue will come to the expectations of its readers.

Team IJLRA

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CAN THE EDUCATIONAL TRIBUNALS BRING QUALITY IN THE HIGHER EDUCATION INDUSTRY? A STUDY (By M.Geetha & Prof Dr.S.V .Pulla Reddy)

Higher education means any education after 12 years of education. It may be a professional degree or a regular degree.The fields chosen by student may vary. It may be arts, commerce, medicine, engineering, architecture, , cinematography, media, journalism, mass communication, music 1dance, sports, fashion designing, modelling, acting, etc. The requirement of variety in courses, approach, examination methods are under constant change as per needs of the society and world at large.It requires expertise and knowledge in the relevant field to understand these courses to be able to set a standard.This is applicable to educational institutions which are engaged in multiple courses.At the same time to resolve disputes pertaining to education in relation to admission,fees,seat allotment, disciplinary matters,results, reservation,pay scale,promotions, appointment of teachers,setting standards for syllabus, accreditation of NAAC,establishing and maintain educational institutions,autonomous, minorities status etc to name a few. As per UGC there are professional Councils for the courses offered thereby to maintain certain standards.They are: Professional Councils Professional councils are responsible for recognition of courses, promotion of professional institutions and providing grants to undergraduate programmes and various awards. The statutory professional councils are¹:

All India Council of Technical Education (AICTE) (MCI) Indian Council for Agricultural Research (ICAR) National Council for Teacher Education (NCTE) (DCI) Council of India (PCI) (INC) Bar Council of India (BCI) Central Council of Homeopathy (CCH)

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Central Council for Indian Medicine (CCIM) Rehabilitation Council National Council for Rural Institutes (NCRI) State Councils of Higher Education (SCHE) All India Council of Technical Education (AICTE) Despite the existence of Professional Councils there are number of cases piled up in the Courts on the disputes relating to education.Initial reforms on education came with Kothari Commission report. The Commission had submitted its Report on 29 June 1966; its recommendations were accommodated in India's first National Policy on Education in 1968.² It didn't say any thing about tribunals in education.Later in 1986 NPE called for a "child-centred approach" in primary education, and launched "Operation Blackboard" to improve primary schools nationwide. The NPE '86 recommends that the institutions of national importance like UGC, NCERT, NIEPA, AICTE, ICAR, IMC etc. will be strengthened to enable them to give shape to national system of education and to cope with the emerging demands of the nation.³ Nevertheless No. 123 report highlighted about- Decentralisation of administration of justice: Disputes involving centres of Higher Education.It was expected to be implemented,but was not. In between lot of changes and technology has started dominating almost all sectors of the industry. The Information Technology Act 2000 has lead many changes in the lifestyle and administration of industry,schools,universities govt offices ,hotels tourism and almost everything.For this minimum literacy is required to be achieved by the Govt.Importance of 2education at all levels became need of the hour.⁴ Law relating to education can be understood as follows: There was no fundamental right about education.Initially it was a State subject.After 42 nd Amendment Act 1976 in Seventh Schedule,Article 246,List III: Concurrent List,no.25. the subject Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour are included.⁵

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In Fundamental duties under Article 51A under Part IV A of the Indian Constitution Provide opportunities for education to his child or ward between the age of six and fourteen years. This duty was added by the 86th Constitutional Amendment Act, 2002⁶ In of state policy: Article 45: Provision for early childhood care and education to children below the age of six years. Article 46: Promotion of education and economic interests of SC, ST, and other weaker sections.⁷ In Fundamental rights: Article 15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth In clause (5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30. In clause (6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category. Explanation.—For the purposes of this article and article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.⁸

Both Article 29 and Articles 30 guarantee certain right to the minorities. Article 29 protects the interests of the minorities by making a provision that any citizen / section of citizens

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having a distinct language, script or culture have the right to conserve the same. Article 29 mandates that no discrimination would be done on the ground of religion, race, caste, language or any of them. Article 30 mandates that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. In Unni Krishnan vs Union of India, held that a private medical/ engineering college comes within the writ jurisdiction of the court irrespective of the question of aid and affiliation.⁹ Article 226 is enshrined under Part V Chapter V of the Constitution. It empowers the High Courts to issue certain writs. Article 226 gives discretionary power to the High courts to issue direction, order, writs including the writs in nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Article 32 is invoked for the enforcement of fundamental Rights whereas Article 226 is invoked for enforcement of fundamental right as well as other legal rights too. These right to constitutional remedies under Article 32 and 226 are utilised by students,management and even teachers too.Apart from Administrative Tribunals Act 1985,Courts are also occupied with cases by teachers in higher education. The 86th amendment to the in 2002, provided Right to Education as a fundamental right in part-III of the Constitution. The same amendment inserted Article 21A which made Right to Education a fundamental right for children between 6-14 years.¹⁰

The Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE), is an Act of the Parliament of India enacted on 4 August 2009, which describes the modalities of the importance of free and compulsory education for children between 6 and 14 in India under Article 21a of the Indian Constitution .¹¹ TMA Pai case ¹²has created a way for establishment of Tribunals in higher education.Thereby a Bill on Educational Tribunals was introduced but could not get majority vote and it was lapsed.With regard to the Bill the Standing Committee has given a report and made some suggestions to the Bill.¹³ The Standing Committee on Human Resource Development submitted its 225th Report on „The Educational Tribunals Bill, 2010‟ on August 20, 2010. The Chairperson was Shri Oscar Fernandes. The Bill seeks to set up educational tribunals at the national and 3state level in order to resolve disputes between universities, teachers and statutory regulatory authorities. The Committee recommended that the Bill be passed after incorporating the suggested

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amendments. The Committee observed that no specific assessment about quantum of litigation has been carried out. It recommended that before setting up tribunals, the magnitude of cases and costs incurred in litigation should be assessed. A minimum court fee should be fixed to ensure viability of the tribunals. At present, Orissa and Gujarat have state educational tribunals. However, their jurisdiction is limited to service condition of teachers, grants-in-aid etc. The Committee pointed out that the status of existing tribunals is unclear. Also, it is unclear if state governments would accept all the provisions regarding state tribunals. The state educational tribunal shall be composed of three members. The Committee observed that it would be difficult for a three member tribunal to take up sizeable number of cases. It recommended that there should be a five member state educational tribunal. Since the number of educational institutions vary from state to state, the Committee felt that one educational tribunal per state cannot be made uniformly applicable. The Committee stated that there is no clear rationale for fixing a minimum age limit of 55 years for members of the tribunals. It recommended that competent people with adequate knowledge and experience, irrespective of age, should be considered. In case there is a vacancy in the chairperson‟s post, other two members shall hear cases in the state educational tribunals. However, this leaves the possibility of cases being heard without a judicial member (since chairperson is the only judicial member). The Committee pointed out that a recent Supreme Court judgment states that every two-member bench of the tribunal should always have a judicial member. Also, whenever any larger or special benches are constituted, the number of technical members should not exceed the judicial member. The Committee were of the view that certain provisions of the Bill violate the Supreme Court judgment and should be re-thought. The Committee recommends that the term “unfair practice” should be defined in the Bill so that it is not open to interpretation by the courts. The Committee expressed reservation about the composition of the national educational tribunal which shall have three Secretary to the government of India as members since it would lead to bureaucratization of4 tribunals. Also, they may not be easily available for sittings. The Selection Committee to recommend panel for national tribunal includes the and Secretaries, Higher Education, Law and Justice, Medical Education and Personnel and Training as members. The Committee recommended that there should be adequate representation of the academia in the Selection Committee. The Committee proposed that the government needs to identify the lacunae of the existing tribunal systems and ensure that

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orders of the tribunals have some force. The Committee stated that all viable alternatives such as setting up of district tribunals in areas where there are higher concentration of institutions should be explored. The Committee noted that the Bill does not include the word “student” in the main body. It should be made clear that students themselves can seek justice under the Bill. The Committee recommended that separate mechanisms needed to be devised to ensure justice in case of public and private institutions. Also, SC/STs should be duly represented in the tribunals.¹⁴ To get a clear picture of the problems the response of judiciary in higher educational matters can be looked into:

1/.Cut-off marks for OBC candidates -Art 15(5):P.V INDIRESAN(2) Versus UNION OF INDIA AND OTHERS:In this case JNU rewriting eligibility criteria of OBC candidates after receipt of marksheets from general candidates by fixing cut-off for OBC candidates at 10% less than that secured by last candidate admitted under general caategory.As per this if sufficient OBC candidates were not available OBC seats were converted to general category seats.The procedure adopted by JNU is arbitray. The use of the words "cut- off marks" is in the order ( P.V .Indiresan (1),v.Union of India,(2009) 7 SCC 300) refers to the marks secured by the last candidate to be admitted in general category or in any particular category,or to the minimum marks to be possessed by OBC candidates, determined with reference to the marks secured by the last candidate to be admitted under general category.The SC has allowed where already admissions completed shall not be disturbed but cannot be allowed further.Also last dates of admission extended.

2./Reservation for Central Government NGOI pool in University's Medical and Dental Colleges:Bhawna Garg and another Versus University of Delhi and others and Kopal Rohtagi Versus University of Delhi and others ( 6 Supreme Court Education Cases (2015) 1 Supreme Court Cases 401):The 4 candidates failing in common entrance test of Delhi inuniversity getting selected on the basis of NGOI ( Nominees of Govt Of India) quota was challenged on ground of violation of Art 14.Even the selection has not been done in accordance with regulations 5 of MCI.This anamoly being rectified by MCI by way of amending it's regulations of admissions.The Court had directed Central Government to take a review of its allocation of seats and take a decision by following MCI regulations from then onwards.

3/.Contempt of Court-Civil-by Director of Medical Education:Priya Gupta and another Versus Addl.Secretary,Ministry of Health and Family Welfare and Others:While deciding

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Priya Gupta (2012) 7 SCC 433,it was noticed by the Supreme Court that the contemnors admitted less meritorious students over students of higher merit by ignoring the directions issued by the Supreme Court.The Supreme Court noticed that the officials had tampered with the schedule under the regulations and judgement of the Supreme court and were not performing their duties as per law.Under Art.144,129,215 and 141' of the Constitution of India such disrespect would have great impact on credibility of judicial institution encouraging chance litigation.Considering the entire spectrum of facts and circumstances the contemnors deserve to be punished and are awarded the sentence of fine of Rs.2000;each to be deposited within 4 weeks.In the event of default they shall be liable to undergo civil risonment for a period of two weeks.

4.Service matters- Universities in State of Maharashtra: State of Maharashtra Versus Nowrosjee Wadia College and others (6 Supreme Court Education Cases 224(2013)11 Supreme Court Cases 762:Leave encashment given to teachers by affiliated colleges whether can be reimbursed from State Govt without there being any provision for the same.The statutes framed by Pune University Act 1974 entitle the teachers of the affiliated colleges to get the benefit of leave encashment,there is no provision either in that Act or in the 1994 Act which obligates the State Govt to extend benefit of leave encashment to the university teachers or to the teachers of the affiliated colleges and the mere fact that the statutes of the particular university provide for grant of leave encashment to the teachers does not entitle the university or college concerned to claim reimbursement from the State govt as of right.State govt is perfectly justified in issuing directives to the Universities to amend their statutes.

5.All India Council for Technical Education Act,Status of private affiliated colleges:AICTE Act 1987,Ss,2(h)&(g),Assn of Management of Private Colleges v. AICTE,(2013)8 SCC 271:6 SCEC 255:It was held that affiliated private colleges are part of the Universities and are governed by UGC.A careful reading of Ss 12 -A (2)(c),12'-A (3) to 12'-A (5) ,2'(f) and 3 of the UGC Act and S.2 (h) of the AICTE and exclusion of university in definition of technical institution in S,2'(h) of AICTE Act must be extended to colleges affiliated to University also otherwise the object and purpose of UGC Act enacted by Parliament will be defeated.

6.Principles of natural justice by Vice Chancellor : Hitendra Singh v.P.D.Krishi vidyapeeth( 2014)8 SCC 369: 6 SCEC 657: The inquiry directed by the Chancellor into the illegalities

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and irregularities of the selection process culminating in the appointment of Senior and Junior Research Assistants was legally permisible by the Court.

7.Policy decision and Court's role:State of T.N. v K.Shyam Sunder( 2011)8 SCC 737 : 6 SCEC 65 : As the Expert committee didn't express a collective opinion on educational policy,Court need not abide by Expert committee opinion as per Indian Evidence Act 1872 S.45 Another aspect in the case is as per Art.73 and 162 of Constitution of India policy of a particular project cannot change with the Govt unless the earlier policy was illegal,unreasonable or against public interest.Govt should be above vested interests and nepotism.

8.Instituional preference in PG Medicine courses in State of Karnataka:Vishal Goyal and others v.State of Karnataka and others 6 Supreme Court Education Cases 688 (2014) 11 Supreme Court Cases 456:Residence requirement sought to be disguised as institutional preference.The Court has declared Information Bulletins for postgraduate medical and dental courses for PGET -2014 as ultravires Article 14 of the Constitution as null and void and they have to issue fresh Bulletins for medical and dental courses in the govt colleges as well as the State quota of the private colleges in accordance with the law on the basis of the entrance test already held

9.Expert opinion : University Grants Commission v. Nena Anil Bobde (2013)10 SCC 519 : 6 In relation to Educational policies and issues or Academic matters ,unless there is clear violation of statutory provisions, regulations or notifications issued Court should not interfere since those issues fall within the domain of experts.

10.Minimum standard in medical and Dental admissions: Manoharlal Shaa v M I (2013)10 SCC 60 : 6 SCEC 578 : MCI Z y conduct of surprise inspection and thereupon denying permission for renewal if deficiencies pointed out in regular inspection are not to be removed.The Court said they in this situation it does not require bcompliance with principles of natural justice.

The cases on higher education problems are approached by institutions,students,teachers with the high court or Supreme Court.To deal with it Educational Tribunals Bill 2010 was introduced.Its main aim is a" Bill to provide for the establishment of Educational Tribunals for effective and expeditious adjudication of disputes involving teachers and other employees

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of higher educational institutions and other stake holders (including students, universities, institutions and statutory regulatory authorities) and to adjudicate penalties for indulging in unfair practices in higher education and for matters connected therewith or incidental thereto.”¹⁵ The Bill didn't become an Act as it did not receive majority support in the parliament.

STATE AND NATIONAL EDUCATIONAL TRIBUNALS Table 1: Composition and jurisdiction of the State and National Educational Tribunals

State Educational Tribunal National Educational Tribunal

Establishment To be established by the state To be established by the central government government

Composition A Chairperson and two other A Chairperson and a maximum of eight members (one of whom members (2 shall be judicial, 3 shall be should be a woman). academic and 3 shall be administrative).

Mode of To be appointed by the state To be appointed by the central government Appointment government on the on the recommendation of a Selection recommendation of a Selection Committee. Committee.

Eligibility The Chairperson shall be a The chairperson and the judicial members current or former Judge shall be a current or former in the High Court. Judge of the Supreme Court, to be A member shall be at least 55 appointed in consultation with the years old, with knowledge and Chief Justice of India. experience in higher education Academic and administrative members or public affairs for 20 years, shall be at least 55 years old with and who has been the Vice experience in higher education or public Chancellor or the Chief affairs for 25 years. An Secretary in the state academic member shall be a current or government. former Vice Chancellor or Director of an institution of national importance. An

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administrative member shall be current or former Secretary to the government of India.

Jurisdiction Jurisdiction shall be over Jurisdiction shall be over cases of dispute service matters of teacher and between higher educational other employees of higher institutions and statutory authorities; higher educational institution; dispute educational institution and over affiliation of a higher affiliating university (in case of central educational institution with an universities), and any reference made to it affiliating university and unfair by an appropriate statutory authority. It practices of a higher shall have appellate jurisdiction on orders educational institution of the state tribunals. Orders of the national prohibited by any law. tribunal can be appealed in the Supreme No acceptance of application Court. related to service matters The jurisdiction of the tribunal may be unless the tribunal is satisfied exercised by benches consisting of three that the members. The benches, to be constituted by applicant has availed of all the Chairperson, shall include one judicial remedies available to him member, one academic member and one under the relevant service administrative member.¹⁵ rules.

PENALTIES • An order of the tribunal shall be treated as decree of a civil court. If orders of the national or state tribunal are not complied with, the person shall be liable to imprisonment for a maximum of three years or with fine of upto Rs 10 lakh or with both. The Collector may be informed of an order against a higher educational institution or person. The amount shall be recoverable as arrears of land revenue if payment is not made.

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• No court shall take cognizance of an offence except on the complaint of an officer authorised by the national or state tribunals.¹⁶

There was a criticism on age of the person as 55 to be taken because this may in turn be an avenue of source of in come and occupation for retired judges and administrative and academic persons. The drawback of the Bill is that it doesn't give exact picture of pending cases. In the absence of legal persons due to ill health or death the decision will be taken by administrative and academic persons which is against the principles of tribunals and beyond Court rules. The definitions of Student and unfair practice is lacking in the Bill.

Despite all these the Tribunals were established in the State of Maharashtra,Punjab,Haryana at state level.Before the recommendation of Tribunals on higher education there were already existing tribunals in Gujarat, Pune university tribunals. In reducing the burden of courts and minimising the expenses the approach of Tribunals is found to be a better option. The following suggestions can help to understand need for tribunals in Higher education field:- 1.The tribunals can be appointed with the members of various Higher educational authorities as and when such case comes.For eg:appointing person from Medical Council of India on the forum whenever there are issues relating to medical courses and colleges on turn basis. 2.Having a person of 55 years of age to be agreed upon as the matters require experienced people and after retirement they cannot practice. 3.Even legal person absence has to be filled with an alternate legal person and also case should be decided with required forum only. 4.The quantum of punishment should be as suggested in the Bill and the monetary terms may be minimum court fees initially.Later on through an amendment changes can be made. 5.The data relating to pending cases also cannot give real idea as to the necessity of Tribunals in higher education. 6.When States are establishing their own tribunals it is high time to have a mechanism to regularise the system and bring the Educational tribunals bill in shape.

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Conclusion:Hope is the only way to solve any problem so is in the current system.To bring quality in education and to have affordable system to settle the disputes with strong determination can bring the Educational tribunals bill in its form

FOOTNOTES: 1.www.ugcorg.in 2.http://www.edugyan.in/2017/02/education-commission-or-kothari.html?m=1 3.https://www.yourarticlelibrary.com/education/11-salient-features-of-national-policy-on-education-1986/76821 4.https://www.google.com/search?q=it+act+2000 5.https://www.mhrd.gov.in/seventh_schedule_list-3 6..https://byjus.com/free-ias-prep/fundamental-duties/ 7.http://www.legalserviceindia.com/legal/article-916-directive-principles-of-state-policy-dpsps-.html 8..https://www.financialexpress.com/india-news/what-is-article-15-constitutional-provision-at-the-heart-of-a- brewing-controversy/1618324/ 9..Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors. Cited as: 1993 AIR 217, 1993 SCR (1) 594, 1993 SCC (1) 645, JT 1993 (1) 474, 1993 SCALE (1)290 10..https://www.mhrd.gov.in/rte#:~:text=to%20Education%20%3E%3E%20Overview- ,Right%20to%20Education,may%2C%20by%20law%2C%20determine. 11.https://www.researchgate.net/publication/228194899_Higher_Education_Reforms_in_India 12.T.M.A.Pai Foundation & Ors vs State Of Karnataka & Ors on 31 October, 2002 13.Legislative Brief ,www.prs.org The Educational Tribunals Bill, 2010,PRS 14.ibid 15.Educatoonal Tribunals Bill 2010 16.supra (13) 17.Case laws referred from SCEC VOL6 (2010-2015)2016,Eastern Book Company,Lucknow.

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