IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. (T) No. 13780 of 2008. Decided on 10th March, 2011. _____________________________________________________ Rato Devi. …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. L.N. Sharma, Advocate. For respondents No. 1 and 2. : Mr. A.K. Bansal, Additional Advocate General with Mr. P.M. Negi, Deputy Advocate General and Mr. R.P. Singh, Assistant Advocate General. None for respondent No. 3. For respondent No. 4. : Mr. Y.W. Chauhan, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Petitioner has assailed the appointment of respondent No. 4 to the post of Part Time Water Carrier in Government Primary School, Timbi. 2. Material facts necessary for the adjudication of this petition are that the petitioner submitted an application for considering her candidature for the post of Part Time Water Carrier in Government Primary School, Timbi to the competent authority on 5th May, 2006. Case of the petitioner was approved by the Government on 24.05.2006 under Rule-12 of the policy. A copy of the same was sent to respondent No. 2 on 24.05.2006. The letter dated 24.05.2006 was received by the Deputy Director (Elementary Education) on 30.05.2006. Thereafter, the respondent 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - No. 2 vide letter dated 06.06.2006 informed the petitioner to supply all the necessary documents on or before 12th June, 2006. The necessary documents were supplied by the petitioner on 09.06.2006. However, the petitioner was not offered any appointment letter and in the meantime, respondent No. 4 was appointed as Part Time Water Carrier in Government Primary School, Timbi. 3. Mr. L.N. Sharma, learned counsel for the petitioner has strenuously argued that once the case of the petitioner has already been approved by the State Government on 24.05.2006, case of the respondent No. 4 could not be approved on 1st June, 2006 by the State Government. He further contended that once the process has been initiated for appointing the petitioner, it should have been culminated by offering appointment letter to his client. 4. Mr. A.K. Bansal, learned Additional Advocate General and Mr. Y.W. Chauhan, Advocate have supported the appointment of respondent No. 4. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. Petitioner belongs to S.C./I.R.D.P. category. She is a widow having five minor children. In these circumstances, she made an application for considering her candidature for the post of Part Time Water Carrier in Government Primary School, Timbi on 5th May, 2006. Case of the petitioner was duly approved by the State on 24.05.2006. Thereafter, the respondent No. 1 sent a letter to respondent No. 2 on 24.05.2006. The copy of the same was received by respondent No. 2 on 30th May, 2006. Petitioner has - 3 - been given time by 12th June, 2006 to supply all the documents as per letter dated 6th June, 2006. She had complied with the directives and had supplied the documents on 9th June, 2006. However, surprisingly, when the case of the petitioner stood already approved by the State Government, case of the respondent No. 4 was approved vide letter dated 1st June, 2006 also under Rule-12 of the policy for appointment to the post of Part Time Water Carrier in Government Primary Schoo, Timbi. The decision was conveyed to respondent No. 2 on 05.06.2006, which was received by him on 07.06.2006. The State Government vide letter dated 13.06.2006 superseded all previous orders and consequently, appointment letter was issued in favour of respondent No. 4. He joined his duties on 19.06.2006. The Court is of the considered view that the action of the respondents to scuttle the selection process and offer appointment to respondent No. 4 was arbitrary. Case of the petitioner stood approved on 24.05.2006 and the case of respondent No. 4 was approved only on 1st June, 2006. Respondents No. 1 and 2 knew throughout that the case of the petitioner had already been approved by the State Government and necessary directions had already been issued on 24.05.2006 and 6th June, 2006 to complete the codal formalities. Case of respondent No. 4 could not be considered at all once the case of the petitioner had already been approved by the State Government. The entire exercise has been undertaken by the respondents No. 1 and 2 to accommodate respondent No. 4. The earlier orders issued on 24.05.2006 and 06.06.2006 could not be superseded by the order dated 13.06.2006. The respondents No. 1 and 2 have not assigned any reasons at all why the earlier process - 4 - has been scuttled resulting in denial of appointment to the petitioner. Respondent No. 4 has been unduly favoured by respondents No. 1 and 2. Petitioner is a widow belonging to S.C./I.R.D.P. category. 7. Mr. Y.W. Chauhan, learned counsel for respondent No. 4 has strenuously argued that his client suffers from 40% disability due to hearing impairment. Case of the petitioner was at a better footing vis-à-vis respondent No. 4. The respondent- State could not be oblivious to the difficulties faced by a widow, who has to look-after five minor children. The powers vested with the authorities have to be exercised judiciously. In the present case, the powers vested with respondents No. 1 and 2 have been exercised in wholly un-reasonable and arbitrary manner, resulting in violation of Articles 14 and 16 of the Constitution of India. There is non-application of mind by respondents No. 1 and 2. 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 - 5 - 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 cannote 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 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 - 6 - 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 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. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. The appointment of respondent No. 4 to the post of Part Time Water Carrier in Government Primary School, Timbi is quashed and set aside. He shall cease to function forthwith. The respondents No. 1 to 3 are directed to offer appointment letter to the petitioner within a period of one month from the date of production of a certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma) Judge March 10, 2011. (bhupender) - 7 - - 8 - `