IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No. 2197 of 2011. Reserved on 13.06.2011. Decided on 05.07.2011. _____________________________________________________ Seema Devi. …Petitioner. -Versus- Union of India and another. …Respondents. Coram: The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner. : Mr. B.B. Vaid, Advocate. For respondent No. 1. : Ms. Akshi Chauhan, Advocate vice Mr. P.P. Chauhan, Advocate, for respondent No. 1. For respondent No. 2. : Mr. K.D. Sood, Advocate. ---------------------------------------------------------------------------------------- Justice Rajiv Sharma, Judge: Indian Oil Corporation Limited, Bharat Petroleum Corporation Limited and Hindustan Petroleum Corporation Limited issued a notification for appointment of Distributors for Rajeev Gandhi Gramin L.P.G. vide Annexure P-1. It was also decided to appoint Distributor for location ‘Mahadev’ at Sr. No. 35 of Annexure P-1. Clause-3 of Annexure P-1 lays down a common eligibility criteria for all categories. Clause-4 provides a specific eligibility criteria for different categories, including defence personnel category. According to sub-clause(c)(i) of Clause-4, Defence Personnel means; personnel of armed forces and will cover widows/dependants of those who died in war, war 1 Whether the reporters of the local papers may be allowed to see the judgment?. - 2 - disabled/disabled on duty, widows/dependents of those members of Armed Forces who died in harness due to attributable causes. The candidate applying under this category is required to produce Eligibility Certificate issued from Director General of Resettlement (DGR), Ministry of Defence and Government of India, sponsoring the candidate for Rajiv Gandhi Gramin LPG Vitarak (hereinafter referred to as ‘RGGLV’ in short). According to Clause-3(b), the candidate should be resident of the town/village(s) of the advertised RGGLV location. Petitioner being fully eligible and qualified, submitted an application to respondent No. 2, which was assigned SAO No. 35/01. She annexed all the documents required as per Annexure P-1 including Jamabandi vide Annexure P-6. She was informed vide letter dated 10.12.2010 to supply the residence certificate as per the format attached, showing her to be resident of the advertised location. She obtained the certificate dated 15th December, 2010 vide Annexure P-9 from the competent authority. The certificate was to be furnished by the petitioner by 31st December, 2010. However, the candidature of the petitioner was rejected on 07.01.2011. Petitioner obtained another residence certificate on 10.01.2011 vide Annexure P-13 from the competent authority, whereby her residence has been shown as ‘Mahadev’. This certificate was also supplied by the petitioner to respondent No. 2. Petitioner made a representation to consider her case in view of Annexure P-13. However, the same has been rejected on 8th March, 2011 vide Annexure P-16. 2. Mr. B.B. Vaid, learned counsel for the petitioner has strenuously argued that the main objective for appointing Distributors from the category of defence personnel is to mitigate - 3 - the hardship faced by the family members of this category after the death of bread-earner and also to take effective and meaningful steps towards their rehabilitation. He then contended that the certificate obtained by the petitioner vide Annexure P-9 was also in conformity with law and inadvertently only the word ‘Sai’ has been mentioned though village ‘Mahadev’ has also been mentioned in this certificate. He then contended that the petitioner has also obtained fresh certificate vide Annexure P-13 certifying her residence to be in village Mahadev. He finally contended that the certificate issued to the petitioner dated 10.01.2011 was required to be considered and the rejection of the case of the petitioner again on 08.03.2011 is arbitrary and unreasonable. 3. Ms. Akshi Chauhan and Mr. K.D. Sood, learned counsel appearing for the respondents have strenuously argued that the petitioner had been granted opportunity to furnish the requisite certificate of residence as per Annexure P-8 dated 10th December, 2010, but the petitioner has failed to supply the certificate of residence that she belongs to village Mahadev. 4. We have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The underlying objective for issuance of Annexure P-1 is to rehabilitate the defence personnel including their widows. In the instant case, petitioner is a widow, who was eligible and qualified to be considered for appointment as Distributor under RGGLC. She has furnished all the certificates including the copy of Jamabandi to establish that she belongs to village Mahadev. She had been called upon to furnish fresh certificate of residence - 4 - vide letter dated 10.12.2010. She obtained the certificate on 15th December, 2010 from the competent authority. A bare perusal of this certificate, i.e., Annexure P-9 makes it abundantly clear that village Sai and Mahadev have been mentioned therein. Petitioner is a widow and has accepted the certificate issued by the competent authority believing it to be true. The distance between village Kandhyah and Mahadev is only 4 Kms.. Respondent No. 2 instead of seeking clarification from the petitioner why village Sai and Mahadev have been mentioned, rejected his case on 07.01.2011. Respondent No. 2 should have been conscious of the fact that petitioner is a widow and she was required to be guided properly. It was also open for respondent No. 2 to get this fact verified from their own agency. Petitioner obtained fresh certificate and supplied the same to the respondents to reconsider her case. This certificate was obtained by the petitioner on 10th January, 2011. Petitioner made a representation seeking consideration of Annexure P-13, dated 10.01.2011. However, the same was rejected on 08.03.2011 on the ground that the petitioner has failed to comply with letter dated 10.12.2010, whereby she had been given an opportunity to produce the certificate. It is reiterated that the petitioner had complied with the directives issued on 10.12.2010 by furnishing the certificate dated 15.12.2010, which has not been accepted by respondent No. 2. It was expected from respondent No. 2 being a State within the meaning of Article 12 of the Constitution of India to ensure that the case of a widow will be dealt with with extreme compassion and sympathy. In these circumstances, the action of respondent No. 2 rejecting the candidature of the petitioner initially on - 5 - 07.01.2011 and finally on 08.03.2011 was arbitrary, unjust, unreasonable and, thus, violative of Article 14 of the Constitution of India. 6. What is arbitrary has been succinctly explained by their Lordships of the Hon’ble Supreme Court in East Coast Railway and another versus Mahadev Appa Rao and others, (2010) 7 SCC 678 as under: “20. To the same effect is the meaning given to the expression “arbitrary” by Corpus Juris Secundum which explains the term in the following words: “Arbitrary.-Based upon one’s will, and not upon any course of reasoning and exercise of judgment; bound by now; 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, non-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 Shrilekha Vidyarthi V. State of U.P. 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 - 6 - an act is arbitrary would be determined on the facts and circumstances of a given case. This Court observed: (SCC p. 243, para 36) “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 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. The 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”. 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 - 7 - 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. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure P-10, dated 07.01.2011 and Annexure P-16, dated 08.03.2011 are quashed and set aside. Respondent No. 2 is directed to consider the case of petitioner afresh on the basis of the certificate furnished by her vide Annexure P-13 on 10.01.2011, within a period of eight weeks from the date of production of a certified copy of this judgment by the petitioner. The pending application(s), if any, also stands disposed of. No costs. (Justice Kurian Joseph), Chief Justice. (Justice Rajiv Sharma), Judge. July 05, 2011. (bhupender) - 8 - `