IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P.-T- No. 2837 of 2008. Decided on 29th April, 2011. _____________________________________________________ Ms. Rajni Bala. …Petitioner. -Versus- State of H.P. and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. A.K. Vashishta, Advocate. For the respondents. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Respondent-State has initiated the process for filling up the post of T.G.T. (Acts) in the year, 2006. Petitioner also submitted an application for considering her candidature. She was called for interview on 04.11.2006. Thereafter, the suitability of the petitioner was adjudged and she was appointed as Trained Graduate Teacher vide office order dated 30th March, 2007 in the pay scale of 5480-8925/-. She was posted in High School, Khalogi. However, the respondent No. 3 has refused to accept the joining of petitioner. 2. Mr. A.K. Vashishta, learned counsel for the petitioner has strenuously argued that action of the respondents of not permitting the petitioner to join her duties in sequel to Annexure 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - A-8 is illegal, arbitrary, unjust and, thus, violative of Articles 14 and 16 of the Constitution of India. 3. Mr. R.P. Singh, learned Assistant Advocate General has vehemently argued that the name of petitioner was included in the select list erroneously and the same was rectified later on. He also argued that the petitioner belongs to 2005 batch and the respondent-State has only decided to select the candidates on batch-wise basis from the batch of SC/IRDP candidates, who had done B.Ed. during the year 1998-99. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. It is not in dispute that the petitioner has passed his B. Ed. examination in the year 2005. Mr. A.K. Vashishta, learned counsel for the petitioner has drawn the attention of the Court to requisition sent by the Director, Higher Education to the Employment Exchange for recruitment of T.G.T. (Arts) vide Annexure P-10. A bare perusal of the same reveals that so far as the candidates belonging to SC-IRDP category are concerned, they were called up to the batch of 2005. Petitioner belongs to SC-IRDP category. It is in these circumstances that her name was sponsored against the post reserved for SC-IRDP category. The candidates belonging to Schedule Tribe, OBC and WFF categories were also eligible up to 2005 batch. It is also evident from office order Annexure A-8 that one Veena Rani who also belongs to 2000 batch has been offered appointment and permitted to join her duties. Thus, the stand of the respondent-State of not permitting the petitioner to join her duties pursuant to Annexure A-8, is arbitrary. - 3 - 6. What is arbitrary, has been explained by their Lordships of the Hon’ble Supreme Court in East Coast Railway and another Versus Mahadev Appa Rao and others, (2010) 7 Supreme Court Cases 678. Their Lordships have held as under: “13. A Constitution Bench of this Court in Shankarsan Dash v. Union of India (1991) 3 SCC 47 had an occasion to examine whether a candidate seeking appointment to a civil post can be regarded to have acquired an indefeasible right to appointment again such post merely because his name appeared in the merit list of candidates for such post. Answering the question in the negative this Court observed: "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct - 4 - position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha 1974 (3) SCC 220; Neelima Shangla (Miss) v. State of Haryana 1986(4) SCC 268 or Jitender Kumar v. State of Punjab 1985 (1) SCC 122." 14. It is evident from the above that while no candidate cquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent Writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter. 15. To the same effect is the decision of this Court in Union Territory of Chandigarh v. Dilbagh Singh and Ors. (1993) 1 SCC 154, where again this Court reiterated that while a candidate who finds a place in the select list may have no vested right to be appointed to any post, in the absence of any specific rules entitling him to the same, he may still be aggrieved of his non-appointment if the authority concerned acts arbitrarily or in a malafide manner. That was also a case where selection process had been cancelled by the Chandigarh Administration upon receipt of complaints about the unfair and injudicious manner in which the select list of candidates for appointment as conductors in CTU was prepared by the Selection Board. An inquiry got conducted into the said complaint proved the - 5 - allegations made in the complaint to be true. It was in that backdrop that action taken by the Chandigarh Administration was held to be neither discriminatory nor unjustified as the same was duly supported by valid reasons for cancelling what was described by this Court to be as a "dubious selection". 16. Applying these principles to the case at hand there is no gainsaying that while the candidates who appeared in the typewriting test had no indefeasible or absolute right to seek an appointment, yet the same did not give a licence to the competent authority to cancel the examination and the result thereof in an arbitrary manner. The least which the candidates who were otherwise eligible for appointment and who had appeared in the examination that constituted a step in aid of a possible appointment in their favour, were entitled to is to ensure that the selection process was not allowed to be scuttled for malafide reasons or in an arbitrary manner. 17. It is trite that Article 14 of the Constitution strikes at arbitrariness which is an anti thesis of the guarantee contained in Articles 14 and 16 of the Constitution. Whether or not the cancellation of the typing test was arbitrary is a question which the Court shall have to examine once a challenge is mounted to any such action, no matter the candidates do not have an indefeasible right to claim an appointment against the advertised posts. 18. What then is meant for arbitrary/arbitrariness and how far can the decision of the competent authority in the present case be described as arbitrary? 19. Black's Law Dictionary describes the term "arbitrary" in the following words: - 6 - "Arbitrary-1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious." 20. To the same effect is the meaning given to the epression "arbitrary" by Corpus Juris Secundum which explains the term in the following words: "ARBITRARY - Based alone upon one's will, and not upon any course of reasoning and exercise of judgment; bound by no law; capricious; exercised according to one's own will or caprice and therefore conveying a notion of a tendency to abuse possession of power; fixed or done capriciously or at pleasure, without adequate determining principle, no rational, or not done or acting according to reason or judgment; not based upon actuality but beyond a reasonable extent; not founded in the nature of things; not governed by any fixed rules or standard; also, in a somewhat different sense, absolute in power, despotic, or tyrannical; harsh and unforbearing. When applied to acts, "arbitrary" has been held to connote a disregard of evidence or of the proper weight thereof; to express an idea opposed to administrative, executive, judicial, or legislative discretion; and to imply at least an element of bad faith, and has been compared with "willful". 21. There is no precise statutory or other definition of the term "arbitrary". In Kumari Shrilekha Vidyarthi and Ors.v. State of U.P. and Ors. (AIR 1991 SC 537), this Court explained that the true import of the expression "arbitrariness" is more easily visualized than precisely stated or defined and that whether or not an act is arbitrary would be determined on the facts and circumstances of a given case. This Court observed: "36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that - 7 - procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that `be you ever so high, the laws are above you'. This is what men in power must remember, always." 22. Dealing with the principle governing exercise of official power Prof. De Smith, Woolf & Jowell in their celebrated book on "Judicial Review of Administrative Action" emphasized how the decision-maker invested with the wide discretion is expected to exercise that discretion in accordance with the general principles governing exercise of power in a constitutional democracy unless of course the statute under which such power is exercisable indicates otherwise. One of the most fundamental principles of rule of law recognized in all democratic systems is that the power vested in any competent authority shall not be exercised arbitrarily and that the power is exercised that it does not lead to any unfair discrimination. The following passage from the above is in this regard apposite: "We have seen in a number of situations how the scope of an official power cannot be interpreted in isolation from general principles governing the exercise of power in a constitutional democracy. The courts presume that these principles apply to the exercise of all powers and that even where the decision-maker is invested with wide discretion, that discretion is to be exercised in accordance with those principles unless Parliament clearly indicates otherwise. One such principle, the rule of law, contains within it a number of requirements such as the right of the individual to access to the law and that power should not be arbitrarily exercised. The rule of law above all rests upon - 8 - the principle of legal certainty, which will be considered here, along with a principle which is partly but not wholly contained within the rule of law, namely, the principle of equality, or equal treatment without unfair discrimination." 23. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non- application of mind by the authority making the order is only one of them.Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.” 7. It is reiterated that the respondent-State has decided to fill up the post of T.G.T. (Arts) from the category of SC-IRDP up to 2005 batch. It is settled law that a person who has been offered appointment letter, has no indefeasible right to get appointment, however, it is equally settled that the employer has to give cogent and convincing reasons why the person, who has been selected, has not been offered appointment letter. In the instant case, the petitioner though has been offered appointment letter vide Annexure A-8, however, she has been arbitrarily not permitted to join her duties. Once the suitability of the petitioner has been adjudged and the appointment letter has been issued to her, she was required to be permitted to join her duties. - 9 - 8. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Respondents are directed to permit the petitioner to join her duties as T.G.T.(Arts) pursuant to Annexure A-8, within a period of three weeks from the date of production of a certified copy of this judgment by her. Petitioner shall be deemed to have been appointed from the date when the persons mentioned in Annexure A-8, dated 30th March, 2007 have been appointed. Petitioner shall be entitled to only notional benefits towards seniority etc.. She will not be paid the arrears of salary. No costs. (Rajiv Sharma) Judge April 29, 2011. (bhupender) - 10 - `