A.P. SHOWKATH ALI & ORS. versus STATE OF KERALA & ORS.
[2017] 7 S.C.R. 698, Supreme Court of India, 2017
Outcome: Dismissed (Dismissed)
Segment: Facts
A 
[2017] 7 S.C.R. 698 
A.P. SHOWKATH ALI & ORS. 
v. 
STATE OF KERALA & ORS. 
(Civil Appeal No. 2827 of 2010) 
B 
AUGUSTI0,2017 
[KURIAN JOSEPH AND R. BANUMATHI, JJ.[ 
Kera/a State and Subordinate Service Rules, 1958: 
rr. J 3AA and 39 - Special recruitment of thirty-seven Assistant 
C 
Sub-Inspectors of SC/ST category - For declaration of probation 
they were required to pass special test - The test not conducted for 
twelve years - Jn the meantime provisional promotion granted to 
them - invoking r. 39, Government order passed exempting them 
from passing the special test - Exemption order challenged by 
D 
appellants by filing writ petition - Petition dismissed by High Court 
- On appeal, held: Though r. J 3AA makes the passing of the test 
obligatory, and.order of the Government dated 5.02.2000 ruled 
that SC/ST employees are not entitled to any test exemption, but r. 
39 is to operate notwithstanding anything prescribed under 1958 
Rules or Special Rules or any Government order - Also in the facts 
E of the case, an equitable relief deserved to be granted by invoking 
r. 39 - Thus, order granting exemption is justified - Service Law -
Probation - Equity. 
Equity: 
Purpose of and applicability of equity - Purpose of equity 
F jurisdiction is to prevent injustice and promote justice - Equity shcilf 
overpower technicality where human justice is at stake - There is 
difference between equity exercised by law-maker and the equity 
jurisdiction exercised by the Court -
ResidumJ1 power is reserved 
by the law-maker to be used in a situation which are not otherwise 
G prescribed under law - Even the courts to exercise equity jurisdiction 
when there is no law operating in the field. 
H 
Dismissing the appeal, the Court 
HELD: 1. No doubt, under Rule 13AA of Kerala State and 
Subordinate Service Rules, 1958, the passing of test is obligatory 
698
A.P. SHOWKATH ALI & ORS. v. STATE OF KERALA & ORS. 
699 
for memb~rs of the Scheduled Caste and Scheduled Tribe below 
A 
the rank of Sub-Inspectors in the Police Department. But it has 
to be seen that it is Rule 39 of 1958 Rules, which is an exception 
to the exemption contemplated under Rule 13AA. Rule 39 is to 
operate notwithstanding anything prescribed not only in the 
Kerala State and Subordinate Services Rules or the Special Rules 
B 
but even in any Government Order. The whole purpose of such 
residuary power is to remedy an otherwise unjust and 
inequitable situation. Therefore, the Government Order dated 
05.02.2000 (which has ruled that Scheduled Caste and 
Scheduled Tribe employees who entered the service on or after 
. 1.1.1986, are not entitled to any test exemption) also does not C 
stand in the way of the Government invoking Rule 39. That apart, 
Ru.le 13AA operates in the matter of promotion whereas in the 
instant case, Rule 39 is operated in the matter of probation. 
[Para 10] [706-C-E] 
2. The whole purpose of equity jurisdiction is to prevent D 
injustice and to promote justice. Equity shall overpower 
technicality where human justice is at stake. There is a lot of 
difference between the court exercising equity jurisdiction and 
the law-maker itself exercising it. A residuary power is reserved 
by the law maker, namely the Government, to be used in certain 
situation which are not otherwise prescribed under law. However, 
such power does not clothe the
Executive to supplement a 
prescribed provision or to act in violation of the same. "Equity 
steps in where the law has left yawning gaps". Even for courts, 
equity jurisdiction is meant to be exercised when there is no law 
. operating in the field. [Para 14) [709-B-D] 
Roshanlal Kuthalia v."R.. B. Mohan Singh Oberoi (1975) 
4 SCC 628: [1975) 2 SCR 491; Charles K. Skaria v. C. 
Mathew (1980) 2 SCC 752 : [1980] 3 SCR 71; Bola v. 
Sardana (1997) 8 SCC 522: [1997[ 2 Suppl. SCR 507; 
E 
F 
Shiv Kumar Sharma v. Santosh Kumari (2007) 8 SCC 
G 
600 : [2007] 10 SCR 17 - relied on. 
3. In ascertaining equity and justice in the present case, 
the simple question to be addressed is what would happen to 
those thirty seven Assistant Sub-Inspectors in service, in case 
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[2017] 7 S.C.R. 
A 
the exemption is not granted. For no fault on their part, should 
they have to continue as Assistant Sub-Inspectors only till their 
retirement? Is there any point, nay, does it even appeal to 
common sense, to subject them to the test after more than twelve 
years of entering service and serving in promoted posts as weit? 
B Certainly, to remedy such a situation, an equitable relief deserves 
to be granted to such employees in the interest of justice by 
invoking rule 39. That is what has been done by the Government 
as per the impugned Order dated 17.11.2000. [Para 151 [709-E-
FI 
c 
Sherafuddin v. State of Kera/a 2004 (2) KLT 731/ 
MANU/KE/0103/2004 - approved. 
D 
E 
F 
T.C. Sreedharan Pillai and Others v. State of Kerala 
and Others 1973 KLJ 187/MANU/KE/0299/1972 -
referred to. 
Case Law Reference 
[19751 2 SCR 491 
relied on 
Para 14 
[19801 3 SCR 71 
relied on 
Para 14 
[19971 2 Suppl. SCR 507 relied on 
Para 14 
(20071 10 SCR 17 
relied on 
Para 14 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2827 
of 2010. 
From the final Judgment and Order dated 10.08.2007 of the High 
Court ofKerala at Emakulam in O.P. No.31168 of 2001. 
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Shyam Divan, Jaideep Gupta, Chander Uday Singh, V. Giri, 
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Sr.Advs., S.V. Raj, K. Vijayan, K. Rajeev, V.K. Biju, Himanshu Singh 
Yadav, Abhay Pratap Singh, G. Prakash, Jishnu M.L., Ms.Priyanka 
Prakash, Ms. Beena Prakash, Jayanth Muth Raj, Manu Krishnan G., 
P.S. Sudheer, M.P. Vinod, Atul
Shankar Vinod, Dileep Pillai, Advs. for 
the appearing parties.
A.P. SHOWKATH ALI & ORS. v. STATE OF KERALA & ORS. 
701 
The Judgment of the Court was delivered by 
A 
KURIAN, J. 1. What is equity and justice in a situation where a 
few employees face adverse consequences for not passing an obligatory 
test which was never conducted, is the short question arising for 
consideration in this case. 
2. In a special recruitment, thirty-seven Assistant Sub-Inspectors 
B 
belonging to the Scheduled Caste/Scheduled Tribe community were 
appointed by the Government of Kerala during 1988. It is the requirement 
of the Special Rule that they should pass the special test conducted by 
the Kerala Public Service Commission for declaration of probation. Rule 
9 of the Special Rules, to the extent relevant, reads as follows: 
c 
"9. TEST-
a) Every person appointed under these rules shall, pass the test 
on the subjects mentioned in Annexure III to these rules at or 
before the fifth of such tests held after such appointment the 
maximum number of chances shall be limited to three. 
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Note: The examination will generally be conducted half-yearly by 
the Kerala Public Service Commission." 
· 
3. For over twelve years, the test was not conducted by the 
Commission. In the meanwhile, those Assistant Sub-Inspectors 
E 
approached the High Court and obtained orders for provisional promotion 
to higher posts along with their juniors. 
4. While the Assistant Sub-Inspectors continued to ertjoy 
provisional promotions, the Government felt that there should be a
one-
time solution for the issue regarding the passing of the test under the 
· Special Rules since the test had not been conducted. In such circum-
stances, the Government passed an Order dated 17 .11.2000 invoking 
Rule 39 of the Kerala State and Subordinate Services Rules, 1958 (here-
inafter referred to as 'the Rules') exempting those thirty-seven directly 
recruited Assistant Sub-Inspectors from passing the test prescribed un-
F 
der the Special Rules. Since the order is self-explanatory, we shall ex-
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tract the same as such: 
"ORDER 
As per Government Order read as first paper above, Government 
issued Special Rules for Special Recruitment from among 
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members of scheduled castes I scheduled tribes to the post of 
Assistant Sub Inspector in the general Executive Branch (Local 
Police) in the Police Department. Subsequently the Director 
General of Police proposed certain modifications to the above 
Government order during 1988, the following are the gist of the 
proposals:-
!. the Note under rule 9(a) of the said rules shall be deleted 
and the Department may be authorized to conduct the tests 
and declare the results as in the case of other trainees in the 
Police Department. 
2. Every person appointed to the Police force is required to 
execute a bond to the effect that he shall serve the 
Department for a minimum period of 5 years after 
practical training. 
3. the period of training of Assistant Sub Inspectors shall not 
count as duty for increment and probation, duty for the 
limited purpose of calculation ofleave eligibility as a special 
case as in the case of Police Constables and Sub 
Inspectors. 
The above proposal of the Director General of Police was 
considered by Government in detail and draft amendment 
notification in this regard was forwarded to the Kerala Public 
Service Commission for their advice on 6.1.1989. Initially the 
Kerala Public Service Commission did not agree to the amendment 
proposal. But during 1993 the Kerala Public Service Commission 
sought clarifications for certain points and the reply to the 
clarifications sought
by the Kerala Public Service Commission 
was furnished to them. Final decision on the proposal is yet to be 
taken. 
Consequent on the issuance of the Government Order read as I st 
paper above, 37 persons belonging to SC/ST Community were 
directly recruited as Assistant sub Inspectors during 1988 and 
they joined training from l.11.1988 onwards. According to Rule 
9(a) of the Special Rules issued as per the above Government 
Order all the 3 7 Assistant Sub-Inspectors should pass the test 
prescribed thereunder to be conducted by the Kerala Public 
Service Commission for declaring the satisfactory completion of
A.P. SHOWKATH ALI & ORS. v. STATE OF KERALA & ORS. 
703 
[KURIAN, J.] 
their probation and for earning increments. But unfortunately, no 
A 
test was conducted by the Kerala Public Service Commission till 
date probably because proposals to amend the provisions in the 
Special Rules regarding the conduct of the test and certain other 
matters had been under consideration. As a result, these 37 
officers did never get an opportunity to appear for the test and 
B 
hence the satisfactory completion of probation of the above 
mentioned 37 Assistant Sub Inspectors has not been declared so 
far. This created a situation during 1991 when Assistant Sub 
Inspectors who were juniors to these 37 offo;:ers were promoted 
as Sub-Inspectors. Some among the 37 Assistant Sub Inspector 
approached the Hon'ble High Court by filing OP No. 12822/91 
C 
and based on the directions of the Hon'ble High Court all the 37 
officers were provisionally promoted as Sub Inspector. 
Though. based on the directions of the Hon'ble Court, all the 37 
Assistant Sub Inspectors were promoted as Sub Inspectors. the 
question ofoassing of the test for declaration of their probation in 
D 
the category of Assistant Sub Inspector remains unsolved. The 
Director General of Police has reported that the seniority of these 
officers could not be fixed so far. Further these officers are being . 
denied annual increment due to them as passing ·of the test is 
necessary for increment also. The Director General of Police
has 
further reported that all the above-mentioned 37 Assistant Sub 
E 
Inspector· have become senior Sub Inspectors who can be 
considered for promotion as Circle Inspectors. If the issue 
regarding the passing of the test and declaration of probation is 
not solved immediately, these officers are likely to be superseded 
in the promotion of this post of Circle Inspectors. The situation as 
F 
described above has arisen for no fault of these officers. Though 
passing of the test has been prescribed for the declaration of their 
probation. the test prescribed has never been conducted though 
12 years have passed since their recruitment. They were appointed 
as Assistant Sub-Inspectors 12 years ago and they are at present 
working as (Provisional) Senior Sub Inspectors still getting the 
G 
. minimum of the scale of pay of the Assistant Sub Inspector. Now 
after a lapse of 12 years, insisting on the passing of the test by 
these officers is quite unjustified. Now that they will be working 
as Sub Inspectors for the last several years, insistence on a test 
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[2017] 7 S.C.R. 
which was to decide then suitability for confirmation in the rank 
of Assistant Sub Inspector is illogical also. In order to sort out an 
immediate solution to the above problem, the Director General of 
Police has proposed that this is a fit case of invoking powers of 
the Government under Rule 39 of the KSSRs, 1958 taking into 
account the extraordinary circumstances under which these 
officers have suffered seriously for so long. He has, therefore, 
recommended that the Government may invoke General Rule 39 
and exempt these officers from passing the test prescribed under 
Rule 9( a) of the special Rules. 
Having examined the proposal in detail, Government are pleased 
to exempt the 37 directly recruited Assistant Sub Inspectors from 
passing the test prescribed under Rule 9(a) of the Special Rules 
issued as per Government Order read as first paper, as a Special 
Case, by invoking Rule 39 of the General Rules." 
(Emphasis supplied) 
' . 
5. The. above Order was challenged by the appellants before the 
High Court bf Kerala. The High Court, as per the impugned Order, 
dismissed the writ petition, holding that: 
"9. The reasons stated by the Government disclose an 
extraordinary situation and the injustic'e that was meted out to the 
Assistant Sub Inspectors of Police, warranting invocation of its 
powers under Rule 39 of K.S. & s:S.R. Reasoning of the 
Government that it was illogical and unjustified
to ask the Assistant 
Sub Inspectors of Police to appear for the test after rendering 
service of 12 years in the post also cannot be said to be 
unreasonable. We are satisfied that Government was justified in 
invoking the power under Rule 39 of K.S. & S.S.R. and in our 
considered view, there is nothing illegal in Ext.P6 order of the 
Government." 
6. Aggrieved, the appellants are before this Court. 
7. Shri Shyam Divan, learned Senior Counsel appearing for the 
appellants submits that under Rule 13AA of the Rules, no exemption 
can be granted to the members of the Scheduled Castes and Scheduled 
Tribes from passing.the tests prescribed forthe purpose of promotion in 
the case of Executive staff below the rank of Sub-Inspectors in the
. 
. 
,. 
\ ., 
A.P. SHOWKATH ALI & ORS. v. STATE OF KERALA & ORS. 
705 
[KURIAN, J.] 
Police Department. It is contended that the ,said Rule has to operate 
A 
notwithstanding anything contained in the Rules,. and therefore, it is an 
exception to Ruie 39. It is also contended that the Government Order 
dated 05.02.2000 has specifically ruled that Scheduled Caste and 
Scheduled Tribe employees who entered the service on or after 
01.01.1986, are not entitled to any test exemption. It was also contended, 
B 
. placing reliance on the Full.Bench decision of theKerala .High Court in 
T.C. Sreedharan Pillai .and others Vr State of Kerala and others•· 
that there is no equity arid justice in exempting certain employees from 
passing the obligatory test. Finally, it was c9ntended that in any case it is 
not a case for grant~ng exemption. 
· 
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j.". 
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. ,. 7. Heard Shri Jaideep Gupta, Shri V. Giri and Shri C.U. Singh, 
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learned Senior Gbuti.sel.appearing for the contesting respondents and 
Shri Shyam Divr~·. learned Senior Counsel and Shri V. K. Bi ju, learned 
Counsel appeat · ig for the State who have supported the Government 
Order granting exemption. 
8. In order to appreciate the rival contentions, it is necessary to 
D 
refer to Rule 13AA and Rule 39, which read as follows: 
' 
;'13AA. Notwithstanding anything contained in these rules, 
the Government may, by order, exempt for a specified period, 
any member or members, belonging to a Scheduled Caste or
Scheduled Tribe, and already in service, from passing the 
E 
tests referred to in rule 13 or rule 13 A of the said Rules: 
Provided that this rule shall not be applicable to tests 
prescribed for purposes of promotion of the executive staff 
below the rank of Sub-inspectors belonging to the Police 
Department. " 
F 
xxx 
xxx 
xxx 
xxx 
"39. Notwithstanding anything contained in these rules or in 
the Special Rules or in any other Rules or Government Orders 
the Government shall have power to deal with the case of G 
any person or persons serving in a civil capacity under the 
Government of Kera/a or any candidate for appointment to a 
service in such manner as may appear to the Government to 
be just and equitable: 
'1973 KLJ 187/MANU/KE/0299/1972 
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[2017] 7 S.C.R. 
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Provided that where such rules or orders are applicable to 
the case of any person or persons, the case shall not be dealt 
with in any manner less favourable to him or them than that 
provided by those rules or orders. 
This amendment shall be deemed to have come into force 
B 
with effect from 17th December 1958." 
I 0. We do not think that it needs any elaborate discussion to note 
that Rule 39 of the Rules is to operate notwithstanding anything contained 
in the Rules or Special Rules or Government Orders. No doubt, under 
Rule 13AA, the passing of test is obligatory for members of the 
c Scheduled Caste and Scheduled Tribe below the rank of Sub-Inspectors 
in the Police Department. But it has to be seen that it is Rule 39 which is 
an exception to the exemption contemplated under Rule I 3AA. Rule 39 
is to operate notwithstanding anything prescribed not only in the Kerala 
State and Subordinate Services Rules or the Special Rules but even in 
any Government Order. The whole purpose of such residuary power is 
D 
to remedy an otherwise, unjust and inequitable situation. Therefore, the 
Government Order dated 05.02.2000 also does not stand in the way of 
the Government invoking Rule 39. That apart, Rule 13AA operates in 
the matter of promotion whereas in the instant case, Rule 39 is operated 
in the matter of probation. 
E 
11. The reliance placed on the Full Bench decision in T.C. 
Sreedharan Pillai and others (supra),
according to us, is ofno avail to 
the appellants. The Full Bench has summarized the law on Rule 39 in 
paragraphs-20 and 21, which read as follows (paragraph numbers are 
given as they appear in MANU/KE/0299/ 1972): 
F 
"20. We may now summarise the conclusions that emerge from 
the preceding discussion. We hold that R. 39 is valid and that it 
does not suffer from the vice of arbitrariness or excessive 
delegation. We are of the view that the said Rule does not 
warrant the ·passing of any general order with respect to any 
G 
undefined or large group of persons exempting them from the 
operation of any existing rule or granting a relaxation of the rules 
in favour of such a group. The rule only authorises the authority 
designated therein to deal with any specific case or cases of 
individual officers and to pass orders in a just and equitable manner 
after a full application of the mind of the authority to all the relevant 
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A.P. SHOWKATH ALI & ORS. v. STATE OF KERALA & ORS. 
707 
[KURIAN, J.] 
facts and circumstances necessary for a proper determinati9n of A 
the question as to what would constitute justice and equity. In 
exercising this power it is open to the authority to relax the rigour 
of the rules to such extent as may be necessary to ensure justice 
and equity, but it cannot completely nullify the operation and 
effectiveness of the rules in the guise ofrelaxing their rigour. If, 
B 
however, special circumstances do exist warranting a valid 
classification of the particular case or cases it will also be open to 
the authority exercising the power under R. 3 9 to ac'Cord a special 
treatment in respect of such exceptional cases even by 
exempting the person or persons concerned from the operation of 
any particular rule. In saying this we consider it necessary to 
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emphasise that such a course will be permissible only in those 
rare cases where very strong grounds exist justifying a valid 
classification of the cases of the officers in question for the 
purposes of Art. 14 and 16 of the Constitution. In determining 
what is 'just and equitable' the authority should take into account 
D 
the overall effect that the proposed order would have in relation 
not merely to the particular officers whose cases are specifically 
dealt with by it but also to all others belonging to the same service, 
category or class. The mere fact that the enforcement of a rule 
creates hardship to an officer
or a group of officers will be no 
ground for invoking the power under R. 39, because it must be 
E 
assumed that the possibility of the causation of any such hardship 
must have been duly taken into account at the time when the rule 
in question was made and the rule making authority has 
nevertheless thought it fit to enact such a provision. 
21. Though it was strongly contended on behalf of the petitioners 
that the power under R. 39 can under no circumstances be 
exercised in such a way as to affect the rights of any of the other 
persons in the service, we find it difficult to uphold the said 
contention when it is stated in such a wide form. While explaining 
the scope of R. 39 we have already held that it is permissible 
under the said rule to grant a relaxation of the rigour of the rules 
or even an exemption from any provision contained in the rules in 
favour of any officer or officers, in regard to whom the facts and 
circumstances are such that a valid classification for according 
special treatment would be justified under Art. 14 and 16 of the 
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[2017)7 S.C.R. 
Constitution. It is quite possible that when such an order is passed 
it may directly or indirectly have repercussions regarding the 
seniority, rank or chances.of promotion of some of the othernfficers 
in service. Th.at, however, has to be regarded as an inevitable 
incident of service flowing from the exercise of the power under 
R. 39 which.is as much a rule regulating the conditions of service 
, of all the officers if! the service 0fthe State as the other provisions 
contained in the K.erala State and Subordinate Services Rules. 
The rights conferred on the members of service by the earlier 
Rules Nos. 1 to 38 in the kerala State and Subordinate Services 
Rules are. not absolute jn character but are inherently subject to 
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the contingent liability of being affected by any order validly passed 
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under R. 35f" 
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(Emphasis supplied) 
12. Close to the facts, a situation where the Government had not 
conducted the tests, had arisen for consideration before the Kerala.High 
Court in Sherafuddin v. State of Kerala2, where at paragraph-9, 
it was held that (paragraph numbers are given as they appear in MANU/ 
KE/0299/1972): 
"9. The Government having never conducted the examination. it 
will be unjust and inequitable to deny the service benefits to the 
incumbents if they are otherwise fit for such benefits. In fact the 
very pumose of the rule is to tide over such situations. There is
no 
point in requiring the incumbents to perform an impossibility. They 
are required to pass the examination if only it is held. Admittedly 
it was never held. Therefore, the invocation of Rule 39 in such 
circumstances is justifiable in terms of justice and equity. The 
purpose of the rule is to use the principles of justice to supplement 
law in a fair and reasonable manner and for a just and equitable 
cause. The action/ inaction of the Government shall not prejudice 
an incumbent who is othei-Wise fit for ser\rice benefits and hence 
the order is perfectly justifiable." 
' 
and at paragraph-13, it has been further held: 
"13 ..... When there is failure of justice resulting in\nequity and 
injustice, Rule 39 of the General Rules is to be itivoked in the 
'2004 (2) KLT 73 llMANU/KE/0103/2004
A.P. SHOWKATH ALI & ORS. v. STATE OF KER.ALA & ORS. 
709 
[KURJAN, J.] 
interests of equity and justice. Such power can be exercised even A 
with retrospective effect for doing complete equity ..... " 
13. We respectfully endorse the views expressed by the Kerala 
High Court. 
14. The whole purpose of equity jurisdiction is to prevent injustice 
and to promote justice. In the words of Krishna Iyer, J., in Roshanlal 
Kuthalia v. R. B. Mohan Singh Oberoi3· " ..... equity is the moral 
dimension of law". Thus, equity shall overpower technicality where 
human justice is at stake4• There is a lot of difference between the court 
exercising equity jurisdiction and the law-maker itself exercising it. As in 
the instant case, a residuary power is reserved by the law maker, namely 
the Government, to be used in certain situations which are not otherwise 
prescribed under law. However, such power does not clothe the 
Executive to supplement a prescribed provisi.on or to act in violation of 
B 
c 
the same. As stated by this Court in Bola v. Sardana5, "Equity steps in 
where the law has left yawning gaps". Even for courts, equity 
jurisdiction is meant to be exercised when there is no law operating in 
D 
the field6• 
15. Back to the facts, in ascertaining equity and justice, the simple 
question to be addressed is what would happen to those thirty seven 
Assistant Sub- Inspectors in service, in case the exemption is not granted. 
For no fault on their part, should they have to
continue as Assistant Sub-
Inspectors only till their retirement? ls there any point, nay, does it even 
appeal to common sense, to subject them to the test ,after more than 
twelve years of entering service and serving in promot\:d posts as well? 
Certainly, to remedy such a situation, an equitable relief deserves to be 
granted to such employees in the interest of justice by invoking Rule 39. 
That is what has been done by the Government as per the impugned 
Ord~r dated 17.11.2000. 
16. Application for impleadment is allowed. 
17. In that view of the matter, we do not find any merit in this 
appeal and the same is accordingly dismissed. However, we make it 
clear that we have only dealt with the issue of validity of the 
·' (1975) 4 sec 628 
4 Charles K. Skaria v. C. Mathew, (1980) 2 SCC 752 
'(1997) s sec 522 
6 Shiv Kumar Sharma v. Santosh Kumari, {2007) 8 SCC 600 
•. 
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Government Order dated 17.11.2000 issued under Rule 39 of the Rules," 
and in case the appellants have other grievances, it is for them to pursue 
the same, if permitted under law, through appropriate proceedings 
before appropriate forum. 
18. There shall be no order as to costs. 
B 
Kalpana K. Tripat.hy 
Appeal dismissed.