IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 14014/2008 Reserved on: 18.3.2011 Decided on:23.3. 2011 _____________________________________________ Sushma Sood. …Petitioner. Versus Himachal Pradesh State Electricity Board. …Respondent. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Umesh Kanwar Advocate Vice Mr. Dilip Sharma, Advocate. For the Respondent : Mr. Trilok Jamwal, Advocate. ____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner was appointed as Lower Division Clerk in the respondent-Board in the month of August, 1970. She was confirmed on 28.5.1985. One Sh. Hem Raj was promoted to the post of Upper Division Clerk with effect from 14.8.1985. Petitioner filed original application No. 1011/1994 seeking promotion at par with Mr. Hem Raj. The same was disposed of vide order dated 9.8.1994 with a direction to treat the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 same as representation by the Secretary of respondent- Board. However, as per pleadings, no decision was taken. In the meantime, respondent-Board decided to give relaxation to the petitioner in educational qualification on 19.5.1995, which led to her promotion on 19.2.1996. She preferred another original application No.305/1998 seeking promotion with effect from 14.8.1995. The same was dismissed in default on 25.8.2010. Petitioner has sought volunteer retirement with effect from 31.1.2003. Respondent-Board has decided to withhold a sum of Rs. 75,000/- from the gratuity of the petitioner, as per Annexure A-1 dated 29.8.2003. 2. Mr. Umesh Kanwar has strenuously argued that his client has neither misread nor misrepresented the facts at the time when she was given relaxation, which led to her promotion, as Upper Division Clerk on 19.2.1996. He has further contended that his client has retired on 31.1.2003 and the respondent-Board has decided to withhold the amount only on the basis of Annexure A-1 dated 29.8.2003. 3. Mr. Trilok Jamwal has supported the issuance of Annexure A-1. According to him, no final decision could be taken earlier due to pendency of O.A. No. 305/1998 whereby 3 the petitioner had sought promotion with effect from 14.8.1995. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Respondent-Board had taken a conscious decision to give relaxation in educational qualification to the petitioner on 19.9.1995. It led to petitioner’s promotion on 19.2.1996. Petitioner has filed the Original Application No. 305/1998 seeking promotion with effect from 14.8.1995 instead of 19.2.1996. Thus, this case has no bearing as far as withholding of gratuity by the respondent-Board is concerned. Petitioner has been promoted on 19.2.1996. Case of the respondent-Board is that it had sought clarification from the State Government with regard to equivalence of educational qualification held by the petitioner. This clarification was given to the respondent- Board on 14.7.1992. However, the fact of the matter is that petitioner has been promoted after the issuance of Annexure RA-1 dated 14.7.1992. Petitioner has not misled the authorities at the time when the decision was taken to relax the educational qualification leading to her promotion with effect from 19.2.1996. 4 6. Mr. Trilok Jamwal has also argued on the basis of letters dated 18.3.2002 and 26.7.2002 that the petitioner was not entitled to advance promotional increments with effect from 13.8.1993. Since the petitioner had completed 23 years of service, she was entitled to the same. Moreover, the decision has been taken very belatedly on 18.3.2002 though petitioner stood promoted on 19.2.1996. The Secretary of the respondent-Board, in his communication to the Chief Engineer (OP) South, on 26.7.2002 has also informed him that the qualification of the petitioner was not equivalent to Matriculation, as per the clarification received from the Secretary of the Board of School Education. It is also clearly mentioned in this letter that the petitioner was promoted as Upper Division Clerk vide order dated 19.2.1996 after giving relaxation in educational qualification vide order dated 19.9.1995. Moreover, according to the Secretary since the petitioner had already filed the original application No. 305/1998, no clarification could be issued. As noticed above, original application No. 305/1998 had no bearing as far as the release of salary of the petitioner is concerned. It is reiterated that the petitioner had filed original application No. 305/1998 merely seeking promotion from the date her juniors were promoted. The respondent-Board on the basis 5 of objection raised by the Accounts Officer on 29.8.2003 has decided to withhold a sum of Rs. 75,000/- from the gratuity of the petitioner. This decision has been taken after the retirement of the petitioner. It is also mentioned in this office order that since original application No. 305/1998 had not been decided, final payment of gratuity could not be made. This was arbitrary act on the part of the respondent- Board. 7. 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 6 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 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 7 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.” 8. Moreover, in the instant case, petitioner has not been heard before the issuance of Annexure A-1. Petitioner has suffered civil and evil consequences. Gratuity is a property within the meaning of Article 300-A of the Constitution of India and the same could not be withheld without any authority of law. 9. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure A-1 dated 29.8.2003 is quashed and set aside. Respondent-Board is directed to release a sum of Rs. 75,000/- to the petitioner with interest @ 9% per annum, within a period of one month. No costs. (Rajiv Sharma), Judge 23.3. 2011 *awasthi*